Under French Copyright Law, the design or other works generated during the BIM process may be protected should such work be considered as original. The author of the protected work is considered as the owner of the intellectual property rights pertaining to the protected work (article L.111-1 of the French Intellectual Property Code).
French Copyright Law may grant copyrights to databases if their selection and arrangement is creative and constitute the author’s own intellectual creation (article L.111-1 of the French Intellectual Property Code). However the technical data within the databases, if they are not original, may not be copyrighted (see below (ii) Sui generis protection).
In the context of BIM, the author and the associated ownership of the copyrights may be difficult to qualify. Indeed, the contributions submitted by the parties during the BIM process may be protected by copyright and give such parties the quality of author or “co-author” with the associated ownership of the intellectual property rights.
Under French Copyright Law (article L.113-2 §1 of the French Intellectual Property Code), when several parties contribute to a piece of work, irrespective of whether or not each of the contributions is individualised, such work may be considered as a “collaborative work” (“oeuvre de collaboration”). In such cases, the copyrights will be jointly owned by the parties who made an original contribution to the work.
The work created in the course of BIM may be considered as derivative work or “composite work” (“oeuvre composite” as defined in article L.113-2 §2 of the French Intellectual Property Code). “Composite work” is work in which an existing work has been incorporated without the collaboration of the author. The author of the original work remains the owner of said work but the ownership of the whole composite work is vested in the author who made the new contribution. In the context of BIM, where the parties submit their contributions at different stages of the project, the last party who made an original contribution may be in a position to claim ownership of the whole work.
The contributions submitted by the BIM participants may fall under a third category of work protected by French Copyright Law, the collective work (“oeuvre collective” as defined in article L.113-2 §3 of the French Intellectual Property Code). The owner of the copyrights pertaining to a collective work is the person who has, on his sole initiative, conceived, supervised, edited, published and disclosed the work, and where the personal contributions of each of the authors involved in the creation cannot be individualised. In such cases, ownership of the contributions made by the different participants in BIM will be vested in one person.
Therefore, depending on the involvement and the contributions made by the parties, the ownership of copyrights may be affected.
As a general remark, it is worth mentioning that under French Copyright Law when a work is commissioned the copyrights are not automatically assigned to the commissioner. For this purpose the author (e.g. an Architect) and the commissioner must enter into a copyright assignment agreement or clause.
In this regard, it is recommended that the issues pertaining to copyright ownership be addressed in an agreement entered into between the parties which take part in the BIM process.
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