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37 Minnesota said that âsoftware issues processing- resolving vertical surfaces and integration of intersect- ing roadwaysâ have been problematic.529 Minnesota also identified as issues the â[g]eneral formats accept- able/readable on different grading equipment (Topcon, Trimble, etc.)â and â[s]atellite coverage impact on accu- racy.â530 In Missouri, the [a]bility to create 3D models from our design software is in its infancy. Many issues exist with the software that [is] still being enhanced. We concentrate the model on the main line alignment and side roads at this time but hope to improve our model ability to deal with more complex roadway geometry elements in the future.531 PennDOT reported that compatibility issues between consultant platforms (AutoCADD) and departmental standards are sometimes an issue.532 Texas noted that the usefulness of modeling is dictated by the level of detail contained in a contractorâs schedule and that timeliness has been an issue.533 D. BIM Specifications in Bid Documents and Contracts Of the nine departments using BIM, only four (Min- nesota, Missouri, Pennsylvania, and Wisconsin) stated that they have bidding information, specifications, con- tract and/or other documents regarding or requiring the use of BIM and access to and use of BIM and models for their construction projects.534 However, Caltrans ad- vises that its construction department is currently working on a directive that would provide specifications and bidding information for the use of automated ma- chine guidance in its construction projects.535 Minnesota stated that special provisions are used to govern the use of machine control. The Missouri DOT said that it has been providing raw data to contractors for about 5 years to permit the contractors to create a model of the main line and side roads of a project and that beginning in 2012, the department has changed its âdelivery requirements for designers to actually create the model as a part of the bid package for any projects that have significant earthwork.â536 Missouri DOT pro- vided a link to its Electronic Design Data Delivery.537 PennDOT provided a link to its Engineering and Con- struction Management System (ECMS).538 Wisconsin 529 MnDOT Response. 530 Id. 531 MoDOT Response. 532 PennDOT Response. 533 TxDOT Response. 534 The transportation departments in California, Florida, Michigan, and Texas stated that they did not have such infor- mation or documents. 535 Caltrans Response. 536 MoDOT Response. 537 See http://epg.modot.mo.gov/index.php?title=237.14_ Electronic_Design_Data_Delivery (visited Aug. 5, 2012). 538 See http:/www.dot14.state.pa.us/ECMS/ (visited Aug. 5, 2012). noted that its specifications for using AMG processes in subgrade construction are found at Section 650.3.3.3 of its standard specifications for Highway Construction.539 XIII. CONCLUSION The Copyright Act is applicable to BIM models as copyrightable works under the Act. Architectural plans and drawings are copyrightable as pictorial, graphic, and sculptural works and as architectural works. A designerâs original plan or design, including a digital model thereof, is subject to the copyright laws. Fur- thermore, a computer program for digital information modeling is protected under the Copyright Act. An audiovisual program and the computer program that implements it are separately copyrightable. Thus, with respect to BIM, computer programs, audiovisual works, and models derived from plans and designs are sepa- rately copyrightable. The transportation departments responding to the survey did not identify any statutes or regulations that authorize or require a transportation department to make use of BIM. Of the nine departments using BIM, only four stated that they have bidding information, specifications, contract and/or other documents regard- ing or requiring the use of BIM, and access to and use of BIM and models for their construction projects. For some departments, the departmentâs designer or project engineer creates a model for a project, whereas other departments use contractors or consultants for that purpose. Unless prohibited by state law, under the work-for-hire rule, state and local agencies may seek copyright protection for their works, for example, when prepared by their own staff. However, unless there is an agreement designating the work as one for hire, a model created for a transportation department by an independent contractor belongs to the independent con- tractor. A designer of a model may impose restrictions on access to and on the use or dissemination of a model by a terms-of-use, end-user, license, or other agreement or may use software controls. A contract or license may be used not only to prevent ownership of oneâs creative works but also to transfer a collaboratorâs or userâs con- tribution to a model to the owner of the copyright in a model. Except in the circumstances discussed in the digest, under the copyright laws, it is the creator of an original design and any model based thereon who has exclusive rights to the model, including the right to make deriva- tive models. Nevertheless, the contract documents should address who owns the copyright in a model de- veloped for a project. Because a model may be derived from an original or underlying model, the contract documents also should specify the party having the le- gal rights to reproduce, use, make derivative works, distribute, and publicly display a model or models. A transportation department may want to utilize a dis- 539 See http://roadwaystandards.dot.wi.gov/standards/ stndspec/ss-06-50.pdf#ss650 (visited Aug. 5, 2012).
38 claimer of interest or ownership or other agreement to provide that department is the owner of any model or later contributions to it. Under the joint authorship rule, unless otherwise provided by contract, an ownerâs involvement simply by virtue of its ownership of or participation in a project does not render the owner a joint author. The issue of joint authorship is important because joint authors have an undivided, equal interest in a copyright regard- less of the difference in their respective contributions. Evidence of intent to create a joint work does not have to be in writing. Because consultants, contractors, or subcontractors may make significant contributions to a model and thereafter want to claim joint authorship of it, the issue of whether there is joint authorship or ownership should be addressed by contract. The contract documents should identify the model or models to be developed for the collaborative use of the team, the parties responsible for preparing the models, and the required content of the models. Decisions made in the modeling process should be reflected in the con- tract documents, and the BIM-protocol should require contract changes as the model changes. The contract documents should address the means of authenticating collaborators; allocate the rights and responsibilities of the collaborators; identify who owns and/or controls the data on a Web site or other source; and provide for the protection and archival of data, models, and changes to models. The contract documents should delineate the collaboratorsâ responsibilities and should identify who is responsible for errors allegedly caused, for example, by systems or software. The con- tract documents should state whether collaborators are warranting their inputs and changes to a model on which other collaborators may be expected to rely. Participants in a BIM project may insist on using disclaimers to limit or avoid their responsibility when another party relies on a collaboratorâs input or changes to a model. The use of disclaimers, however, may dis- courage collaboration, thereby significantly diminishing the benefits of using BIM. One solution is for the con- tract documents and BIM process to provide for a log and/or archive of data, models, and changes to models so that there is a record-copy, if needed, for later com- parison. Transportation departments may use digital signa- tures to identify and authenticate each collaboratorâs contribution or change. Because the use of digital signa- tures is voluntary, the contract should address whether and to what extent the parties and collaborators on a project must use digital signatures. The level of security varies according to the type of digital signature used, with PKC/PKI signatures being the most secure. A de- partment will want to verify whether digital signatures may be used with the BIM software designated for the project. Users of BIM may encounter interoperability prob- lems. The contract documents for a BIM project should require bidders to have interoperable software and the ability to provide BIM modeling as part of their qualifi- cation package. Moreover, the contract documents should include guidance on software and/or interopera- bility requirements for modeling and a file format for exchanged files so that there is a relatively seamless flow of information. Although no cases were located for the digest regard- ing whether models are protected as trade secrets, it appears that a model may be protected as a trade secret from misappropriation and use by another party. How- ever, if a claim really is one for copying or infringement of a model, it is possible that the trade secret claim would be preempted by the Copyright Act. In regard to disclosure laws applicable to public re- cords, such as a FOIA or FOIL, in general the acts now apply to government information and data in electronic form. The cases located for the digest uniformly hold that even a copyrighted work must be disclosed unless disclosure is precluded by a specific exemption. In two cases the courts held that although the data had to be released, the government could restrict redistribution by requiring a requester to sign an end-user agreement. Unless there is a specific exemption, data compiled by the government is not protected as a trade secret from disclosure; however, information in the possession of the government that if released would reveal a third partyâs trade secret may be protected from disclosure.
