by Mark Middlebrook, www.markcad.com.
This article originally appeared in the October 1991 issue of CADALYST magazine. I've made a few minor editing changes to reflect current technology and terminology. The article includes a companion piece, "Who Owns the Drawings?", by Robert Hartman
Several years ago, I ran across an advertisement for an unbelievably cheap CAD program in the back of a mass-mailing software brochure, which thrust forth the rhetorical challenge, "Why hire an architect when you can produce your own drawings for only $19.95?!" This hilariously inane ad reflected the all-too-common confusion about the difference between the need for a tool and the need for the expertise which makes use of that tool. It also aptly demonstrated public misperception about the distinction between design and drafting.
The confusion isn't entirely unexpected, though, given the fuss we often make about our drawings. Although drawings are instruments of a designer's services, rather than products in themselves, good construction documents cost a lot to produce, and they reveal our designs to anyone who knows how to read them. Thus drawing ownership has always been a crucial issue in the relationships amongst owners, architects, and other members of the design team. Contracts usually spell out in what form the contract documents get delivered to the owner (as bluelines, reproducibles, original tracings, or now, electronic files), and what are each party's rights to and liabilities from the documents in the future. Although disagreements and transgressions still occur, these contract provisions at least represent some general consensus about who owns what.
Now with more and more projects being produced on CAD, this uneasy peace threatens to be shattered. Clients, and especially the federal government, often are demanding that contract documents be delivered in electronic form. Owners are looking to reap some of the long-promised advantages of CAD like drawing re-use for facilities management or renovation, while design professionals are worried about loss of control over their documents and a corresponding increase in liability. Also, delivery of contract documents in electronic form is only part of the larger issue of electronic document exchange. Consider these other scenarios:
In other words, you may well find yourself on the giving or receiving end of electronic drawing exchange in the near future. What should your responses be? How can you protect your own work, avoid infringing on the work of others, and reduce your liability?
I put these questions to several experts in contracts, liability, copyrights, and intellectual property rights. First I spoke with Steven Schirafian and Kenneth Natkin of Natkin Weisbach Higginbotham, a San Francisco law firm specializing in contracts and copyright law for design professionals. Messrs. Schirafian and Natkin pointed out that most of the drawing ownership issues raised by CAD aren't new, but simply require that we attend to the same copyright and liability concerns which accompany paper documents. They noted, on the other hand, that these issues are heightened by the ease with which computer-generated drawings can be re-used, and the relative anonymity of CAD drawings and changes made to them.
According to Edward Frankel with the Concord, NH law firm of Frankel, Murphy & Ogden, specialists in software licensing and intellectual property matters, "the current Copyright Act protects 'original works of authorship' that are 'fixed in any tangible medium of expression'", including drawings on disk. Schirafian noted that recent changes in copyright law extended this protection to designs, as well as documents. Technically, "a copyright exists as soon as an idea is expressed in a tangible form", Frankel writes, "there is no need for an author to meet any formal registration or copyright notice requirements."
Nonetheless, Frankel warns that providing accurate copyright notices and registering any commercially valuable works in the Copyright Office are only prudent, and give one access to valuable enforcement tools. An accurate copyright notice comprises three parts: the word "Copyright" or © (c in a circle -- note that "(c)" does not qualify), the year of publication or creation, and the name of the copyright owner.
Thus a knowledge and exercise of the protections afforded by copyright law offer legal recourse against anyone who makes unauthorized use of someone else's drawings. Of course these protections cut both ways: if your firm takes over or renovates a project from another firm, and you intend to avail yourself of their documents or design, you'll need to obtain their permission to do so. This sort of exchange often relies on a transfer document, a legally binding document prepared by attorneys for each of the firms. Schirafian points out that a transfer document should make clear the intended use of the drawings or other design documents, as well as specify the new user's liability in re-using the old documents.
For many firms, it is the potential increase in liability, rather than possible copyright violations, which makes them most nervous about exchanging electronic documents. This is a prudent nervousness, for as Schirafian cautioned, there is little legal precedent in construction law in general, and even less precedent involving electronic documents. Few lawsuits against design professionals go to trial; because of the large number of parties and great complexity in most construction cases, they usually are settled out of court.
Prudence need not become paranoia, though. As with copyrights, paying heed to a few practical considerations will go a long way toward limiting one's liability. Terry McGill with Dealy, Renton & Associates, insurance brokers located in Oakland, CA, specializes in professional liability insurance. He urges that design professionals confronted with requests for electronic drawings ask the same questions they should ask before becoming involved in any project: who is your client, and what is the project? A remodel of a house for the homeowner, a one-of-a-kind office building for a corporation, and a prototype for a speculative developer each raise different concerns. Consider the amenability to re-use or mis-use of your DWG files, and your client's willingness and financial ability to protect you against the consequences.
Dealy, Renton & Associates suggests that, as with transfer documents, your contracts for professional services should make explicit what constitutes authorized re-use of electronic documents, and wherein the liability lies. Authorized circumstances for re-use might include subsequent tenant improvement work, facilities management, or renovations. Other contract provisions should address the presumed integrity, accuracy, and completeness of electronic data, including after translation to a different CAD format, and the consequences of modifications to CAD drawings by others. Of course, hold harmless and indemnification clauses will be important parts of these provisions.
Additionally, a design firm's contracts should reserve the right to retain originals of the electronic documents, as well as governing hard copies which can be referred to in the event of disputes or inconsistencies. Finally, you may want to remove your company name, logo, or other identifying marks from the electronic copies. Schirafian notes that such removal won't change your liability, but can make it a bit harder for some litigious person to track you down after your electronic drawings have passed through and been modified by several hands.
These provisions help address concerns about supplying electronic documents to an owner, but what about drawing exchange amongst members of the design team? Theoretically, the same rules apply, but in practice the design firms' relationships are rarely so well-defined. Still, when you ask yourself about who your client and what the project is, consider who the other members of the team are, and whether exchanging DWG files with them is likely to bring on any liability or copyright problems. If you are going to exchange drawings, make sure everyone agrees up front on formats, standards, exchange schedules, and who has responsibility for and control over which common building elements. A CAD managers' meeting, preferably held before drawing production begins, is a good place to voice expectations and hammer out an agreement on these issues. If they aren't addressed until the first drawings are exchanged, lack of consistency likely will render the event a time-wasting exercise in frustrated expectations.
One drawing exchange issue that is new with CAD is the status of drawing components from third party application programs. When a application program from a third party developer to create drawings, some of the components in those drawings will be copyrighted property of the developer. A developer's copyright certainly would cover blocks which come with the application program, and might even extend to components built parametrically by the developer's AutoLISP or ARX programs. Even distributing bluelines which rely on such components would seem at first glance to constitute copyright infringement, never mind exchanging electronic DWG files.
Frankel, who counsels companies like Softdesk on software licensing, points out that the doctrine of "fair use" saves us users from utter despair. He writes that "fair use is defined as a privilege to use copyrighted material in a reasonable manner without consent, notwithstanding the monopoly granted to the owner of the copyright." Since the primary purpose of most application programs is to make drawings for distribution (in hardcopy form) to clients, fair use allows that doing so does not infringe on a developer's copyright.
But Frankel is not so sanguine about the application of fair use to electronic exchange, and suggests that design firms consider drafting their own license agreements with clients who want construction documents in DWG form. Such a license agreement should limit the client's use of third party components (and probably the whole drawing, since it will be difficult to establish which components are covered) to generating hardcopy output. "Otherwise," Frankel warns, "the user is arguably liable to the third party application provider for copyright infringement and violation of the application's license agreement."
Of course, this sort of agreement will prove difficult to police, especially when facilities management and renovation are two of the more compelling reasons for an owner to want DWG files. On the other hand, an agreement puts the recipient on notice, and demonstrates an attempt to comply with the intent, if not the letter, of the software developer's licensing agreement. Such a solution is less than completely satisfying, and it behooves those of us who use third party applications to discuss the problem with developers. Ask them for clarification of what implications their licensing agreement has for drawing exchange, and suggest that future licensing agreements address the issue explicitly.
Although the lawyers and insurance representatives I spoke with counseled caution, none of them suggested that sharing electronic documents was a categorically bad, or even undesirable, practice. In fact, Schirafian suggested that exchanging drawings might even help keep design professionals out of lawsuits, many of which are caused by lack of coordination. As always with the touchy but vital relationships amongst owners and members of the design team, communication and avoiding surprises is the key.
Mark Middlebrook is president of Daedalus Consulting in Oakland, CA and a Contributing Editor for CADALYST magazine. Some of his best friends are lawyers.
The perennial question of ownership of documents, now decades old, surfaces again in the world of CAD. All of the guidelines published by the American Institute of Architects and other professional organizations have long urged practitioners to hold on to their "original drawings" and to deliver to their clients only prints of those drawings. Yet the U.S. Department of Defense has for just as long made it a part of the Conditions of the Contract that the A/E shall deliver unto the Government all of the original vellums or mylars of all final Contract Documents. The Government subsequently bears all the expense of reproducing those documents, specifications included, in quantity, and of preparing microfiche copies of all of the drawings for archiving purposes. If it's OK for the Federal Government to demand this, why then all the historical hoopla over the private sector not having the same rights?
There was a time when architectural and engineering drawings were beautifully "draughted" in ink on highly starched linen. They were then run through a "blue-printing" process which resulted in prints of blue paper having white lines on them. Reprographic technology advanced (not necessarily concurrently with "draughting"): "blue prints" gave way to blueline diazo-process prints, which gave way, again, to photo processes that today can reproduce any drawing, on paper or mylar, in a virtually "original" format. Thus the "original" has technologically lost its exclusivity as a one-of-a-kind document. Today, one can possess dozens of "originals", each practically indistinguishable from the other.
Performing architectural design services on a "fee for service" basis since around 1949, I have always felt fairly and fully compensated when I received my agreed upon fee, and the drawings representing my design efforts were freely given over to my clients for their further use and/or reproduction. I consider the handing over of the original drawings a normal part of my service.
In today's electronic world of CAD there is again an hysterical and paranoid segment of the design professions attempting to withhold their CAD documents, in electronic format, from their clients, because CAD floppies constitute the equivalent of their precious paper originals.
Look at the situation from the perspective of the owner: having paid for the intellectual efforts which went into creating the data now residing in raw electronic form on that floppy disk, he should be entitled to any further use of that electronic data if such use constitutes a legitimate owner's need. In most cases, the information (data) which the owner wants is above and beyond the information I provided according to my contractual obligation to supply building design documents for construction purposes. The types of information he seeks are the simple "electronic by-products", if you will, of the CAD design process, and the owner's use of them for other purposes in no way detracts from my architectural design efforts, nor does it to alter the intent of my design elements.
As an architect, in order to protect my rights to such electronic information, I do inform my clients that I retain all rights to further use of all CAD "blocks" contained within their CAD drawings, but that they are free to electronically copy any and all data contained in the DWG files and to make that data available to anyone they choose without further compensation to me. I also specify that any further use of those DWG files shall not make me liable for any mis-use of that data.
This practice is equivalent to the present day custom of an owner furnishing paper or mylar "as-builts" to any new design professional or consultant, for purposes of making new or adaptive designs or modifications to the original design concepts. Supplying as-builts is extremely helpful in most remodel projects, since the preparation of measured drawings, whether electronic or manual, of existing conditions is extremely labor-intensive and constitutes "additional services". It is far more practical to base new designs on as-built prints even when they are less than 100% accurate. If the original drawings have been produced on CAD, and floppy disks of those CAD drawings are in the possession of the owner, then any new architect hired to do remodel work will at least have an electronic DWG file to work from.
There is another benefit to the owner who has floppy disks of his project's drawings, and one which takes absolutely nothing away from the work of the original designer/architect. There is hidden information contained within any electronically drawn line, arc, or circle, such as length or radius. With CAD drawings on floppy disk, that raw electronic data can be manipulated by the owner for purposes of area calculations, occupancy factors or usage.
A real "added value benefit" to me, as the design architect, comes from the owner's perception of my services having been openly and professionally provided, thus giving me a better chance of receiving additional contracts. And it costs me not a whit to give that floppy to the owner.
As for my personal feelings about the business of architecture, I do not feel, and never have felt, that all owners are unmitigated intellectual thieves, nor that all building contractors are crooks. Doing business with the widest possible variety of owners and building contractors for more than 40 years has not shown me any reasons to change those feelings to any great extent.
Robert Hartman was an architect and Contributing Editor for CADALYST magazine until his death in the early 1990s.
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