Liability Briefing on e-Business

What are the issues for the designer?
Copyright
Software format requirements
Commercial and practical issues
Storing and archiving

What are the issues for the designer?

The adoption of software solutions to develop designs electronically is ever increasing. As an alternative to setting up a project extranet, the designer may be required to exchange designs via email. This can give rise to a number of risks for the designer, particularly where editable software is adopted.

Copyright

In most standard form consultancy appointments (e.g the ACE, RIBA agreements), intellectual property rights vest in the designer. The designer then gives the client a licence
(with certain restrictions) to use the design for the purposes of the project, including maintenance etc. In many bespoke and government appointments copyright transfers
from the designer to the client. This means that the client has greater control over the design and the use to which it is put. Whether or not copyright vests in the designer is
often dependent on the nature of the client and the bargaining position of the designer. In any event, designers should always ensure that their appointment excludes their
liability for any use of their design other than that for which it was originally prepared.

Software format requirements

Where editable drawings are supplied electronically- eg in Word, rather than encrypted or ‘pdf’ format – an appropriate disclaimer of liability should always be noted on the
drawing. Where copyright vests in the client, the documents/deliverables produced by the designer are the client’s property and the client has a right to call for them in any
circumstances. For example, the client may decide not to proceed with the project but require electronic delivery of all designs and other documents produced by the design
team. Whether the client may demand their production in electronic format or even a specific software package will be dependent upon the terms of appointment. Where the
contract is silent on this issue, the designer will be entitled to supply the design in whatever format they choose, for example, in hard copy or encrypted format only.

Commercial and practical issues

Arguably, where the designer retains copyright and is not under a contractual duty to supply drawings etc electronically or in a specific software format, a charge may be
made by the designer to cover the costs and associated risks of making the design readily available in the manner requested by the client. The designer should however first
take advice to determine whether such an entitlement exists under their appointment.

The costs generally associated with electronic data transfer should be considered (and, where appropriate, priced) prior to appointment. Whilst designers have reported of
the benefits of such systems, they also report of the costs associated with additional checking requirements where editable drawings are circulated to other project team
members. Depending upon the terms of the appointment, this could be treated as an additional service.

Storing and archiving

As with any electronically generated drawing, report or other document, steps should be taken to store the document in a readily accessible area on the designer’s system with appropriate back up systems to ensure future accessibility. Upon completion of the services, procedures for electronically archiving key project documents need to be in place. These steps are considered in more detail in the Retention & Archiving section.

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