Smart Building Technologies – Thinking About Data

Written by Andrew Wong, Partner, Commercial, Simon Hodgett, Partner, Technology, and Ben Bouwman, Associate, Construction, Infrastructure, and Energy at Osler, Hoskin & Harcourt LLP

Editor’s Note: This blog post was original published by Osler on their Construction and Infrastructure Law in Canada Blog on Reprinted with permission.

Introduction: Smart Building Technologies

Increasingly, contractors and other parties in the construction industry are tapping into opportunities presented by information technology to improve building construction and operation and maintenance service offerings.  The expanded use of information technology promises more efficient and cost-effective services as waste is eliminated and resources are allocated more productively.  This trend impacts every stage of planning, construction, and operation.  These technological innovations often depend upon the collection and use of vast quantities of data.

One powerful technology is building information modelling (BIM).  BIM permits various parties in the construction project, including engineers, architects, consultants, designers, and trades, to input data into a centralized three-dimensional model automated to identify clash points (i.e., incompatible designs from different parties) and efficiency opportunities that could be created by selective re-design.  BIM data can also be aggregated and analyzed to create valuable statistical models across multiple projects, demonstrating the most efficient and useful designs generally in a variety of climactic, geotechnical or other conditions.

Thus, BIM illustrates the multi-tiered nature of data value. In the first instance, value is created for execution of the individual project employing BIM.  In the second tier, data collected and aggregated from BIM models of multiple projects across different applications and enterprises creates a valuable data set with higher predictive value than individual project data alone.  This iterative process is driven by and depends upon the collection, aggregation, and analysis of accurate data.

Buildings enhanced by the collection and use of data are often referred to as “smart buildings”.  Some of the data collected by smart buildings includes project inputs, trade and sub-trade performance, number of users, utility, and other resource consumption, temperature and other building conditions, waste management, and traffic management.

The legal factors that owners, contractors, consultants, suppliers and others should consider when implementing BIM and collecting the associated data include:

  • assessing the value of data to prepare for contractual negotiations
  • ensuring adequate rights to data and preserving value in such data by contractually controlling use rights
  • protecting these assets from illicit third party access by use of appropriate data security safeguards, and
  • managing regulatory risk.

The Value of Data

To properly assess the value of its data, an organization needs to spend time carefully mapping out the data it has and the data that it plans to collect, whether from its own sources or via acquisition from another party.  How valuable is each source of data on its own? How valuable is the data when combined with data from other sources?

The value of data is often multiplied by combining it with other data.  Organizations often obtain more data by adding to their native data set or by contributing data to a larger “pool” in return for access to aggregated data from that pool (e.g., industry-wide data analytics or AI applications).  Organizations may also add data from technology providers or other vendors.  Such data is usually subject to contractual and other obligations that need to be taken into account when deciding how the data will be used.  Once aggregation has occurred in compliance with all contractual, security, and regulatory requirements, larger data sets offer significant competitive advantages, and drive efficiencies and cost savings for current and future projects.

With an accurate assessment of the value of data both on its own and when pooled, an organization can make strategic decisions to grant use rights for its data set or to exploit such data in its own projects and activities.

Current and Future Data Security Measures

In parallel with an accurate valuation of their data, owners and contractors should carefully analyze current data security measures in place in their organization, as well as added measures that need to be included for future data and its anticipated uses.  Organizations should determine where data resides on their systems and should ensure that the security controls in place are commensurate with the value and sensitivity of the data.  Organizations should also consider requiring any proposed contractual party or service provider with whom the organization will share information to make the same investigations and disclose the results as part of contractual negotiations.

One risk area for particular scrutiny is the control systems that vendors have in place when such vendors are engaged to work with and extend the capabilities of the organization’s internal systems.  As protection from certain of these risks, contracts should set out both a clear review process to ensure ongoing performance of security obligations, and a comprehensive system of remedies that will effectively protect the organization’s interests in the event of a breach.

A Note on ‘Ownership’ of Data

References to data “ownership” are very common.  However, the concept of ownership has some legal limits.  A wide variety of data types is relevant to BIM and similar technologies, including input data, output data and insights derived from output data.

Input data includes “project data” that is inputted by engineers, architects, designers and other tradespeople.  This data may be subject to ownership claims by the various contributing parties pursuant to their service contracts.  The output data produced by the software technology has significant value over and above the value of isolated input data, and this value may be eroded by a successful claim of “ownership” by an input provider.

It is important to note, however, that data in the form of raw numeric figures is not intellectual property, and that therefore parties should carefully contract to protect their data rights.  Clear contractual language should set out the use rights (and restrictions on use) that apply to the data.  Agreements create no “free standing” intellectual property rights with respect to third parties; so any data distributions to third parties should be subject to contractual restrictions on use.  Effective confidentiality provisions are especially important.

Regulatory Considerations

Many applications such as BIM may collect little or no information about identifiable individuals.  However, if the technology collects, stores or processes data containing personally identifiable information, there are important regulatory issues to consider.  Recording movements of individuals through a building or their use of building systems, if connected with an identifiable individual, would constitute collection of personal information.  Careful consideration should be given to, and specialized advice sought regarding, both internal and public facing data and privacy policies.  Such policies and practices also will need to comply with applicable legislation on the collection and use of personal information.  


Widespread adoption of information technology systems and massive data collection is relatively new in the construction industry, but other industries have been engaged with these issues for some time.  Osler’s professionals are experienced in advising clients concerning data collection in various industries and are available to assist construction industry participants in strategic uses of advanced building technology and data.

Smart Building Technologies – Thinking About Data

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