Out-Law Analysis | 01 Feb 2021 | 2:10 pm | 6 min. read
Businesses involved in the planning, design, construction, operation and maintenance of buildings should develop their own data strategies, and help shape one for the buildings themselves, in a drive to improve building safety.
A data strategy can enhance a business' understanding of the data it has, the value of that information and their rights in that data, and in turn promote data sharing – something that is vital to the development of a single digital 'golden thread' of project data, which has been identified as central to building safety.
A data strategy is a business critical issue for any organisation that wishes to safeguard the data it generates, and also its value
In 2018, Dame Judith Hackitt completed her review of building regulations and fire safety in England. The independent review had been commissioned by the UK government in the aftermath of the fatal fire at London's Grenfell Tower.
In a detailed report setting out 50 recommendations, which has led the government to propose reforms, Dame Judith identified "the lack of complete, accurate and maintained building information" as a barrier to building safety in multi-occupancy higher risk residential buildings (HRRBs) that are 10 storeys or more in height. She advocated the development of a 'golden thread' of "good quality information" to "enable future building owners to better manage their buildings safely". This, she said, involves creating a digital record of the building through its lifecycle, from the design phase, through construction, maintenance and refurbishment.
In a foreword to a more recent report, published late last year by the Chartered Institute of Building (CIOB) and i3PT Certification, Dame Judith reiterated her call for such a golden thread of building information.
She said: "In other sectors we take it as read that if there is a fault or a problem every single element of what has gone into that product can be traced and identified – from cars to food. Why is that not the case for the homes that we live in? Why is it that the 'design' of a building often bears only a passing similarity to what is actually built and what is actually built doesn’t get recorded? How can those who become the managers responsible for managing facilities do that if they do not know what they are working with? Modifications to a building, especially a complex one, can only be undertaken safely if you understand the key design, structural and safety features of what you start with."
The CIOB and i3PT report, however, identified that, despite the technology existing to enable a 'golden thread' of a building's information to be developed and maintained, many businesses involved in buildings projects are not prepared to deliver the digital record keeping envisaged.
The CIOB and i3PT report detailed the results of a survey of people involved in the UK’s built environment industry. The findings show that there is widespread agreement within the industry - 85% - that "a digital golden thread of information will enable better decision making and create a clearer chain of accountability across the built environment.
It is essential that the position on which party, or parties, owns the data is made clear in the contract documents and at the outset of any project so that the processes around data gathering and storage can be properly managed and also to avoid any disputes down the line
The survey also revealed that almost 60% of respondents believe that the concept of a digital golden thread of information is aligned with the UK framework for building information modelling (BIM).
The synergies between the UK BIM framework and the concept of a digital 'golden thread' are obvious, and it seems there is consensus across the industry that BIM will act as an essential enabler for the digitisation of information in construction projects, and if delivered to the level required BIM will invariably harvest and capture the ‘golden thread’ of information.
However, 64% of respondents said they believe it will take "at least two years to implement a golden thread as business as usual for higher risk buildings in the UK". According to the survey report, the "industry culture is the biggest blocker to delivering a golden thread of information", but the findings also identified issues in relation to data ownership that will need to be resolved for a golden thread of information to be developed.
Those data-related survey results showed there is "no clear consensus over who owns project data at the design and construction stages of a project" and that many within industry "appear more comfortable assigning ownership responsibilities to other parties, rather than taking on those responsibilities themselves".
The lack of consensus regarding which party has responsibility for gathering, updating and safeguarding the ‘golden thread’ of information for a project is a little concerning, if not altogether surprising. It is essential that the position on which party, or parties, owns the data is made clear in the contract documents and at the outset of any project so that the processes around data gathering and storage can be properly managed and also to avoid any disputes down the line.
It is similarly unsurprising that most parties are more comfortable assigning ownership of data, and with it, risk, to others. The findings perhaps reflects the 'standard' position in the high rise buildings market where the contractor is liable for all design information, including third party data. However, this conflicts with the overriding need for the right parties to take ownership of the data, so the ‘golden thread’ of information is accurate and available for all relevant stakeholders.
While there may be intellectual property rights present in certain datasets, these IP rights provide limited protection, which is why an organisation’s data needs to be considered distinctly and protected under contract
While data is a valuable asset, data is not really "owned", rather, there are "ownership-like" rights over it.
While there may be intellectual property (IP) rights present in certain datasets, these IP rights provide limited protection, which is why an organisation’s data needs to be considered distinctly and protected under contract. For example, copyright has an originality threshold and may not subsist in automatically generated data outputs. Any skill and labour used to select the inputs to an algorithm would only give rise to copyright in a list of the inputs. The process of automatically generating the outputs once the inputs had been selected would be "pure routine work" in which no copyright subsists.
Because an organisation does not own its data by default, it needs to build and maintain data "ownership" into its agreements with its partners, suppliers and customers. This includes: understanding what data is needed, for example, for the preparation and implementation of a BIM model; liability issues relating to data; controlling and restraining access as appropriate; understanding basic data workflows; and developing a data strategy.
In simple terms, a data strategy is a plan for how an organisation will collect, store, manage, share and use data. It will be driven by the organisation’s business objectives and will spell out what an organisation wants to achieve and how data can help it get there.
A data strategy will require consideration of a range of factors, from technical issues such as data formats and interoperability, to legal and contractual requirements, organisational processes and individual responsibilities, culture, security, data integrity, costs and accountability.
A data strategy should be treated like any other business strategy and subject to planning and review cycles and business objectives. There will also need to be some built-in flexibility, as there may be design changes or parties may drop out of projects. There will need to be some form of longevity in data processing if it is for the life cycle of the building with a number of contributors and users.
A data strategy is a business critical issue for any organisation that wishes to safeguard the data it generates, and also its value. It will allow a business to understand the data that it has and the data that it needs for any given business purpose and who that data will be used by to achieve the business objective. This will include data that it will generate, collect from other sources or data that it needs access to, as well as that which it will dispose or archive that is no longer fit for purpose or required. For example, it could involve permitting suppliers to access data, subject to the right controls and legal protections being in place to guard against inappropriate data use and which protect the organisation’s rights.
A data strategy will allow organisations that are perhaps more comfortable assigning ownership responsibilities to other parties, rather than taking them on themselves, to better understand what data is necessary to fulfil their contractual obligations. This awareness will, in turn, allow them to engage constructively with third parties around data usage.
When considering building and design in the context of the ‘golden thread’, there is currently a lot of uncertainty about ownership of the data. However, what appears not to be discussed is the requirement or purpose of the data. At the project conception stage, there should be a data strategy for the building which will indicate the data that will be required for the life of the building, taking into account the different data providers and the different data users.
This data strategy should define who will generate, create or capture data, and who will require access to it, and most importantly for which purposes. Each party will want to safeguard its own data, but each party should understand the bigger picture and develop contract terms permitting use or access to its data by others for ‘specific defined purposes’ to achieve the golden thread.
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