The firm has developed a letter of agreement (See editor's note below) over the past two years for a situation we see frequently. Contractors consistently ask for electronic backgrounds they can use for the preparation of shop drawings. In that situation, we cooperate and facilitate the process and confirm that we have the contractor's signed concurrence that we retain our copyright and are held harmless, to the full extent of the professional standard, from the contractor's use of our documents.

In one recent school modernization project, we faced two related complications. First, the general contractor was reluctant to sign and return the first letter we sent to him, because he didn't want to carry any liability. And second, the construction manager had set up a project site over which neither we nor the owner had a direct contractual relationship.

The situation
With this particular project, the likelihood that the plans would be reused somewhere else is negligible, since it's for a pre-existing modernized facility. However, there is detailing and other intellectual property incorporated within the plans. I was naturally concerned about modifications being made, even within the team, without our being made aware of it and any applied liability that might result.

I personally have no confidence in the Internet. Our own office Web domain was scammed about four years ago, and we trustingly kept our domain name. As a result of that scam, we're still on the blacklist of some servers. We do use our own secure email sites for each of our projects through which we communicate with our consultants. This Web-based project site was unique because it was totally out of our control. The contract for the site was between the vendor and the construction manager, not the owner. It did not recognize the concerns of some of the individual participants.

The letters
In the case of the letter of agreement with the general contractor, I knew that I couldn't transfer liability to the owner or construction manager. I recrafted the original letter so that the general contractor was comfortable signing it, and we were better able to protect our position and our copyrighted plans.

The letter with the construction manager was a little more complicated. It's one thing when you are sharing a diskette with one contractor or sub. It's another matter altogether when you're posting documents on the Web where anyone with a password has access to them.

Predictably, the construction manager did not understand our concerns. "You're the only architect in the whole country who has a problem with this," he told me. He also suggested to me that I was behind the times, which I really appreciated.

My response was that I was flattered that I'm the only architect in the country who has this concern, but this is not the first time this issue has come up. As a profession, we are actively engaged in this conversation. We're struggling with this issue as it is arising so that it won't develop faster than we're prepared to deal with it.

It was not my intention to provide a roadblock in the process. We reached a consensus that kept the owner's project moving ahead, but I felt that people were not sensitive to the issues. I believe that, within the confines of every practice, individually we're dealing with ownership of electronic media. I concur with the construction manager when he said to me, "You're an AIA junkie, why don't you call the AIA and see what they've got?"

If you have an opinion, I'd like to hear it.

Editor's note:

The author's letters are specific to the project circumstances and state jurisdiction. For more information on transfer of electronic documents see the Schinnerer reports referenced in the column at right.

As the Electronic Information Transfer Issues alert points out, the AIA provides the following guidance on the use and transfer of electronic information in the 1997 edition of AIA Document B141, Standard Form of Agreement Between Owner and Architect. Subparagraph 1.3.2.4 states:
Prior to the Architect providing to the Owner any Instruments of Service in electronic form or the Owner providing to the Architect any electronic data for incorporation into the Instruments of Service, the Owner and the Architect shall by separate written agreement set forth the specific conditions governing the format of such Instruments of Service or electronic data, including any special limitations or licenses not otherwise provided in this Agreement.

This could be done with a letter of agreement, as above. In the case described above, however, there is no contractual agreement between the architect and general contractor or the architect and construction manager. Check with your attorney and professional liability insurance consultant for advice specific to your situation.

Copyright 2002 The American Institute of Architects. All rights reserved.