With the evolution of informatization and new building industrialization, Building Information Modeling (BIM) technology is rapidly being promoted and applied in the engineering field with its unique advantages. As a new technology in development, many products of BIM in practical applications, such as architectural drawings constructed using this technology, inevitably involve copyright legal issues. Therefore, focusing on the generation, production and application of BIM construction drawings, from the four aspects of the copyrightability of Civil3D generated drawings, the reproduction relationship between drawings and buildings and architectural models, the deductive relationship between structural drawings, construction drawings and design drawings, and the identification of copyright infringement of architectural drawings, the copyrightability and interrelationship of architectural drawings in the application process of BIM technology are sorted out, in order to provide reference for future research and judicial practice in this field in the context of Chinese Chinese.
introduction
Promoting the high-quality development of new industrialization and advanced manufacturing clusters is related to the overall situation and the long-term, and is an inevitable challenge for China to develop to the current stage. The industrialization of new buildings is not only a technological breakthrough in the construction industry, but also a comprehensive development of modern construction enterprises. The new building industrialization is driven by a new generation of information technology, with the systematic integrated design of the whole life cycle of the project and the lean production and construction as the main means, integrating the whole industrial chain, value chain and innovation chain of the project, and realizing the construction industrialization of high efficiency, high quality, low consumption and low emission of engineering construction.
To promote the industrialization of new buildings, it is necessary to be driven by digital and intelligent technology innovation and management mechanism reform to create an integrated building production mode. At the level of digital and intelligent technology innovation, prefabricated buildings are the specific production form and main concept carrier of new building industrialization; At the level of digital and intelligent management mechanism, Building Information Modeling (hereinafter referred to as BIM) relies on digital technology to integrate project stakeholders and realize full life cycle management, and is integrated and applied in the whole process of building planning, survey, design, construction, operation and maintenance, which is conducive to the coordination and whole-process management of construction participants in the process of general contracting, and can reduce resource consumption and environmental pollution, which is in line with the green and low-carbon development direction of the construction industry, and is an inevitable choice for the reform of management mechanism in the process of new building industrialization. In the "Opinions on Promoting the Sustainable and Healthy Development of the Construction Industry" and other policy guidelines issued by the State Council, it is proposed to accelerate the integrated application of Building Information Modeling (BIM) technology in the whole process of planning, survey, design, construction, operation and maintenance. With the gradual advancement of BIM application, due to the influence of the multi-party participation mechanism and the uniqueness of products and the mobility of construction in the construction industry, many legal issues have begun to emerge, bringing potential application risks. However, the research and application of BIM technology mode in China focuses on building delivery and operation and maintenance, and there are few studies on BIM property rights. The imperfect copyright system will hinder the continuous application of BIM technology, so it is necessary to analyze and sort out the application results of BIM from the perspective of copyright law from the perspective of copyright law from the perspective of the relationship between the participants in the project construction and the division of ownership, so as to provide theoretical guidance for the copyright protection and regulation of BIM technology output.
1. The relationship and dispute between BIM technology and copyright
(1) The current situation of source exploration and application of BIM technology
BIM technology originated from the concept of "Building Description System" in the 70s of the 20th century, and has developed into a cutting-edge technology in the construction industry based on standardized building data exchange and visualization and information modeling, which is the basic element of new building industrialization. According to the United States definition of BIM standards (NBIMS), BIM is "a digital representation of the physical and functional characteristics of a facility", which is widely recognized and confirmed in the Chinese standard for BIM. BIM is a new tool for civil engineering, architecture and engineering. Based on the traditional three-dimensional geometric model, it constructs an engineering information model for the whole life cycle of construction projects. With its integration, coordination, visualization, parameterization, drawing, simulation, information completeness and other characteristics, BIM technology effectively breaks down the barriers to information interoperability in the construction industry and opens up the channel of building information sharing, so as to achieve effective collaboration and control of the project and improve the success rate and efficiency of the project.
As the technical carrier of building delivery, the BIM model integrates models, data, drawings and other factors, and carries the technical information of architectural drawings at the core of the project. This is very different from the traditional information transmission mode and operation mechanism of the construction industry. Due to the popularization and application of BIM technology, the legal evolution around BIM technology will inevitably advance, and BIM-related copyright law issues are no exception. Whether there is a possibility of copyright infringement for many products brought about by the application of BIM technology (such as three-dimensional models built with this technology, animations used in project management projects, and related drawings). According to the operation process of BIM, the design drawings are designed by the design institute and handed over to the construction unit, and then the construction unit entrusts the BIM company to carry out BIM modeling according to the design drawings. However, according to this circulation model, the drawings relied on by the BIM company to model have not been authorized by the design unit or the copyright owner, so it remains to be considered whether the BIM model constitutes infringement of the design drawings.
The problem of unclear definition of tenure will adversely affect the application of the BIM model in the construction industry. Extraterritorial research takes a similar approach: Ashcraft sees a significant lag in the legal framework for BIM applications, and explains it in terms of interoperability, data abuse, intellectual property, standards, information ownership, etc. Arensman and Ozbek, as well as Eadie and Mclernon, point out that the complexity of BIM technology is rapidly increasing, and that legal uncertainty can be an obstacle to the continued development of BIM, as well as potential risks. BIM technology and copyright are inseparable. Since the products related to BIM technology are intellectual achievements, most of the protection norms surrounding their outputs are subordinate to the Copyright Law. BIM technology and its products are the embodiment of the intellectual achievements of civil engineers and designers, which contain their ideas for architecture and reflect this idea in BIM results. The emergence of BIM technology has enriched the scope of protection of the copyright law, and at the same time, the long-term and stable development of BIM technology is also inseparable from the protection of the copyright law.
(2) The main disputes over the legal issues of BIM technology copyright
Generally speaking, the copyright of an architectural work should belong to the architect, and as Larson and Golden put it, "whoever creates it, who owns it". Article 4 of the Copyright Law of the People's Republic of China also stipulates the intellectual property rights of architectural works under Article 4 of the Copyright Law of the People's Republic of China, "works of fine art and architectural works" and Article 7 of "graphic works and model works such as engineering design drawings, product design drawings, maps, schematic diagrams", etc., but the architectural models mentioned in the Copyright Law do not include BIM information models.
At all stages of the application of BIM technology, there are complex processes and flexible thinking orientation. BIM engineers need to draw a three-dimensional model of the building based on CAD drawings, and the BIM model produced in this process reflects the technical achievements of BIM. In order to ensure the safety and stability of the construction drawings generated and the construction works on which they are based, collision detection and construction simulation tests are introduced at this stage, which also produce a series of coherent images. The construction drawings contain multiple intellectual achievements, including key information such as engineering structure selection, reinforcement method, pouring method, etc., covering engineering, aesthetics, mechanics, architecture, imaging, programming and computer and other multidisciplinary perspectives, which is the technical integration of multiple designers and engineers.
Traditionally, building design is a fragmented process, and current regulations correspondingly focus on having each discipline publish, protect, and solve problems according to their offerings. Due to the application life of BIM technology, there is a lack of systematic and scientific research on the theory around BIM practice, and the copyright ownership of BIM technology output is also disputed. According to the current copyright law in mainland China, there are no clear provisions on whether the BIM model is a work and what kind of work it belongs to, and it is difficult to determine this in judicial practice. In the project management module, due to the more complex operation mechanism of collision detection, the copyright determination of BIM model is more controversial. Due to the standardized construction process and work schedule, it is still debatable whether the project management animation has the "originality" of the work under the Copyright Law, and there are also differences in the identification of the type of work placed in the old and new Copyright Law.
During the construction process, the impact of BIM technology on the entire project is mainly reflected in the design drawings. Academics have different views on the relationship between structural drawings, construction drawings, and engineering design drawings. When BIM technology is introduced into engineering projects, due to the large number of designers, departments, companies, and fields involved, and almost all products are completed by multiple departments, it leads to disputes over the copyright issues and types of works generated by BIM technology. Therefore, how to ensure that BIM technical achievements are effectively protected, prevent infringement, and determine post-infringement remedies need to be solved urgently. Based on the characteristics and existing practices of BIM technology, in specific construction projects and the implementation process of BIM technology, the legal disputes regarding the copyright of BIM technology mainly focus on: whether the construction plan automatically generated by AutoCAD Civil 3D (hereinafter referred to as Civil 3D) has the originality of the work; the relationship between building structure drawings, construction drawings and engineering design drawings; Ownership in the application of BIM technology; Identification and protection of infringement of all aspects of BIM and products. This is also the center and starting point of this article.
2. The copyrightability of the drawings automatically generated by Civil 3D
(1) The argument as to whether the drawings automatically generated by Civil 3D constitute a work
In the application of BIM technology, in order to ensure the safety of engineering projects, detailed modeling and project management processes need to be processed. Therefore, the design of construction drawings is regarded as a key part of BIM application. Civil 3D technology is able to automatically generate drawings based on actual needs. However, there are different opinions on whether the drawings automatically generated by Civil 3D are protected by copyright law. This is because civil engineering encompasses not only construction techniques but also drawing methods, and there are no internal regulations or monopolies similar to "trade secrets". There is a close connection between civil engineering and housing, and it is also closely related to people's daily life, which also shows that civil engineering is an open scientific field. However, the application data of BIM is part of the model built by the participants, and the proprietary information may fall into the hands of competitors, which is also the difference and obstacle between BIM application and ordinary engineering.
In the actual construction process, structural engineers are different from architects and designers in that they pay more attention to the safety of the structure, not only the aesthetics, appearance, structure, etc. Therefore, in the process of structural design and drawing, structural engineers must strictly follow industry norms. In this industry context, some scholars have raised doubts about the innovation of construction drawings generated by BIM technology: due to the constraints of civil engineering industry standards, engineers have relatively low freedom of operation in the design process, and the design drawings automatically generated by Civil 3D software are integrated with the functions of AI, which lack originality and therefore should not be protected by copyright. Still, there is an opinion that the drawings generated by Civil 3D are not much different from traditional drawings, with only minor differences in the intermediate steps. As a result, this reliance on "auto-generated" design drawings retains their innovative nature. Considering that traditional drawings can be considered works of art, drawings with scientific and technological elements under the application of BIM technology may also be subject to copyright protection.
By its very nature, Civil 3D is a BIM solution designed for civil engineering design and document editing, and at the same time, the application of Civil 3D needs to be synergistic with the output and products of other software such as Revit, Dynamo, Infraworks, etc. In short, one of the functions of Civil 3D is that it acts as a "drafting software" that allows users to define their own CAD and design standards, thereby increasing their productivity. We can think of it as "tech-enabled CAD", which plays a key role in the field of drawing. In the process of implementing BIM technology, after completing the steps of modeling, managing the progress of the project, collision detection and construction simulation, the construction drawings must be completed before the project is transformed into actual construction activities to ensure that the construction unit can carry out the final construction work smoothly. Civil 3D can integrate and apply various parameters and results in the previous steps, and generate the corresponding construction drawings through the processing of internal programs, which is the so-called "input program processing - output" operation process. As a result, the "auto-generate" process described in Civil 3D must rely on previous research results and manual operations. Without any processing, even if the construction drawings have been generated, their accuracy, safety and reliability may not fully comply with national and industry standards.
(2) Civil 3D automatically generates drawings and analyzes manual participation
When it comes to the copyrightability of Civil 3D's "automatically generated" drawings, the core point of controversy is whether they have the originality required by copyright law. The collaboration of different BIM model developers complicates the determination of ownership, and in the process, the drawings condense the wisdom of the engineers. When using Civil 3D to automatically generate drawings, the drawings are only original and copyrightable if there is a high level of human involvement. Different from the generation mechanism of clash detection, the construction plan automatically generated by Civil 3D requires a high degree of human involvement. For collision detection, the model is simply placed, configured, and programmed to produce the corresponding product. The product is able to objectively visualize the problems that arise during the collision detection process (i.e. collision points) and visualize the internal conditions in a visual way. In this process, there is little human involvement, most of it is based on simple manual work, and the collision detection tools made lack originality. The process of automatically generating construction plans in Civil 3D is different: in the first stage, various parameters are selectively entered, and then the corresponding creation and integration work is carried out, and then Civil 3D automatically processes and produces the corresponding drawings; In the second stage, the AI is responsible for processing the data and ultimately generating the corresponding drawings. This step focuses only on how the computer program handles the instructions and lacks originality. However, in the initial phase, we need to manually and selectively enter various parameters and involve complex calculation processes, such as the calculation of relevant data such as wind resistance and water pressure. The required parameters can only be entered after careful numerical calculations and the selection of the appropriate parameter intervals. In this area, engineers still have a degree of "independent decision-making power". For example, in tunnel engineering projects, although it is necessary to meet the relevant national standards and ensure the safety of the project, engineers can also make various choices when it comes to the classification of surrounding rock. After careful planning and selection, production and integration are a testament to the creativity of the engineers.
Further, starting from the inherent attributes of the construction plan, "the reason why the schematic diagram can become a work is also because it contains the painter's individual choices, trade-offs and artistic treatments. "The construction plan is actually a unique schematic. Indeed, in the field of civil engineering, all drawing specifications, standards and drawing methods for each part of the drawing must strictly follow the national regulations, and engineers cannot modify them at will. Still, engineers have a lot of choice in terms of color, line, and marking techniques, starting with the subtleties on the drawing and using a variety of colors to mark or emphasize the parts. When selecting certain details and lines, you can render them using techniques similar to those used in art. Therefore, the production of drawings requires the ingenuity of the engineer. As a result, Civil 3D generates drawings with a high level of human participation and originality, which have the possibility of copyright protection.
3. Replication relationship between architectural design drawings, buildings and architectural models
(1) Analyze the relationship between architectural design drawings and building models from the Berne Convention
When talking about the drawing of construction projects, it is natural to think of the relationship between engineering drawings, models and physical buildings. "The protection of architectural works must include the protection of buildings, and in order to protect buildings, it is necessary to protect the construction drawings in architectural design drawings, which has been confirmed in the copyright laws of many countries", and the relationship between the three, especially the analysis of the reproduction relationship, is of great significance for solving the problem of judging the infringement of drawings in construction projects. Drawings are indispensable throughout the construction process of the project. Even with BIM technology, without the corresponding drawings, the construction will not be able to proceed smoothly. For example, to build a BIM model, you first need to prepare the completed CAD drawings. Only when the drawings are imported into Revit can the modeling work be officially started. After the model is built, the BIM model is created, and the design drawings of the construction project are converted into the actual architectural model, and under the guidance of BIM technology, the construction unit can convert the BIM technology into the physical building. The completion of a project presents the use of BIM models to make the leap from design drawings to actual architecture.
Throughout the implementation process, you can see all aspects of the architectural engineering design drawings, physical buildings, and ordinary architectural models. With the application of BIM technology, the architectural model can be divided into conventional architectural model and BIM model. For ordinary architectural models, there are controversies in practice. Due to the differences in visual and intrinsic attributes, some believe that these elements should be grouped into different categories of works of art. This is also in line with the provisions of the Copyright Law that distinguish between "engineering design drawings" and "architectural works". For example, a construction company drew up the architectural design drawings based on the actual needs and built them into a commercial building based on the drawings. According to the Copyright Law, "architectural engineering drawings" and "commercial buildings" are classified as two different works of art. In other words, according to the current copyright law, it is difficult to determine that there is a mutual reproduction relationship between the above-mentioned three. Nonetheless, there was a view that there was a direct reproduction relationship between the three and that such reproduction was not denied by the Berne Convention. In fact, since the signing of the Berne Convention in the 20th century, architectural works have been protected as "works" in explicit terms, and when the Berne Convention grants the author of a work the "right of reproduction" in Article 9, it considers that the exclusive right he has includes any form of reproduction. Reproduction in "any form and in any form" under this formulation should include reproduction from flat to three-dimensional, i.e., reproduction in a broad sense. The core reason why the Berne Convention does not deny the reproduction relationship between architectural design drawings, architectural models and physical buildings is that it takes into account the unique art form of architectural engineering design drawings. In a specific engineering design drawing, various characteristics of the building will be shown in detail, such as the spatial layout and location of the room, the layout direction of the pipes, the number and location of safety exits, etc., as well as the wiring design, spatial location, etc. The design of these architectural details must follow industry standards and be classified as technical solutions for civil engineering, which should be transparent and not subject to copyright law. Nonetheless, architectural drawings are regarded as artistic creations because they not only show the aesthetic value of science, but also reveal the creativity of design. The core idea of the building is to reflect the meaning of the project as described on the drawings. The internal structure and structure of the building are realized according to the corresponding construction engineering design drawings, forming a kind of replication relationship. In addition, the physical building not only has a unique appearance and beauty, but also has an ornamental value, which fully meets the definition of an architectural work under the Copyright Law.
In order to accurately understand the relationship between the right of reproduction and the right of deduction, it is necessary to understand the relationship between the right of reproduction and the right of deduction. The independence of the newly added expression is the key criterion to distinguish between the two. If the newly added form of expression is independent and distinguishable from the original text, then the expression is considered a deductive relationship; If the new content is closely related to the original text, and shows a high degree of consistency in core ideas and innovative thinking, then a so-called replication relationship is formed. Whether it is an architectural engineering design drawing, a physical building, or an ordinary architectural model, it is the result of the designer's design and planning of the target building. These architectural design elements encompass aspects such as exterior, internal structure, and spatial layout, and although they are similar in nature, they differ in the way they express the same building. Therefore, there is a pure mutual replication relationship between the architectural engineering design drawing, the physical building and the ordinary architectural model. However, if the BIM model were used to build the building, a different situation might have arisen. The BIM model is generated based on the architectural engineering design drawings, but in the design stage, digital and informational elements need to be integrated into the model, which is different from the conventional architectural model or engineering design drawings. It is these digital and informational elements that demonstrate the designer's unique expression of the BIM model, so that the BIM model can maintain independent creativity from the original drawings. In addition, with the support of BIM technology, the BIM model takes shape earlier than the physical building, and the BIM model still presents a unique form of expression compared to the physical building. Therefore, the conversion between the BIM model and the other two models is not simply copied, but has a deductive component.
(2) Traditional reproduction: from three-dimensional to three-dimensional
The reproduction relationship between architectural engineering design drawings, physical buildings and ordinary architectural models is determined, and it is necessary to study the reproduction methods in order to clarify the infringement judgment rules of architectural works and architectural drawings. Replication includes replication in the narrow sense and replication in the broad sense. This refers to reproduction in a broad sense.
The traditional method of reproduction is the most prevalent of reproduction, and there are similarities with the paper printing of books, which exist in the form of paper, while printing is the reproduction of books. In the same way, based on the appearance and functional characteristics of a building, it is possible to imitate a similar structure, which is called traditional replication. Copying one building solid model to another solid model can also be considered a three-dimensional copy, which is also part of traditional copying. However, this paper argues that this replication mode of "from one 3D model to another" is still difficult in practice, although it is simple and common at the theoretical level. In the field of engineering, the construction of a building is inseparable from the drawings. When an infringement occurs, it is difficult to completely reproduce the appearance of the building, especially its internal structure, by relying only on the observation, recording, photography, recording and other methods of the appearance. In other words, the strategy of using "holistic perception" can help to create infringement to a certain extent, but in practice it is not practical.
(3) Heterogeneous reproduction: from flat to three-dimensional
Compared with the traditional reproduction method, the heterogeneous reproduction mode intuitively reflects the significant difference between the reproduction mode of architectural works and other types of works. The engineering design drawings of a specific building can not only show the due characteristics of the building, but also meet the needs of the building. If the standard construction process is strictly followed, the construction drawings are drawn according to the architectural design drawings, and the construction is carried out in accordance with the construction drawings until the corresponding building construction is completed, that is, the replication from the plane to the three-dimensional, the heterogeneous replication is completed. By observing the characteristics of heterogeneous replication, it can be found that there is a clear consistency between the architectural design and the physical building. In the field of engineering, the "planar to three-dimensional" method of replication is widely adopted: the construction process of a project is the step of transforming the engineering design into a physical building. As a result, such reproduction occurs not only in compliant construction projects, but also in various infringements and buildings. The root cause of the infringement of a large number of architectural works is the illegal use of engineering design drawings. There are also some views that heterogeneous replication is to construct the corresponding three-dimensional model according to the architectural engineering design drawing, which is actually a "two-dimensional to three-dimensional" copying method.
(4) Replication with the help of Civil 3D in the application of BIM technology
BIM technology also reflects the way architectural works are reproduced. With BIM technical support, Revit is used to build models according to architectural design drawings and complete the construction of BIM models. Some argue that BIM models have a three-dimensional structure and share the same genetic properties as physical buildings, so they can be seen as a "3D-to-3D" replication strategy, which is an extension of traditional replication methods. Another view is that when a BIM model is displayed on a computer screen, it can be considered as a "two-dimensional drawing". Therefore, the construction of BIM models does not meet the standards of traditional copying, but is more like the transformation from "2D to 3D" in the process of traditional copying. There is also a view that both of these views only focus on the interaction between the BIM model and the actual building, and do not explore it in a comprehensive way. Under the framework of BIM technology, the copying process follows the following principles: first, the modeling and project management are carried out, then the relevant parameters are imported into the Civil 3D software to generate drawings, and finally the construction and completion of the building is carried out to realize the replication by the Civil 3D software in the BIM application environment. During the construction process, a key intervening element was incorporated – the BIM model. When we look at the BIM model as a 3D entity, the steps of modeling with Re⁃vit are considered xenocopy; In the process of construction and construction, traditional reproduction techniques were chosen. When we think of a BIM model as a two-dimensional plane, we need to copy it sequentially from plane to plane, and then copy it in different ways.
From a macro point of view, both points of view are reasonable, but when BIM technology is adopted, the process from the initial stage of the architectural design drawing to the physical presentation of the final building can be described as "from flat to three-dimensional", meaning that different forms of reproduction are completed in the process. BIM technology is only a tool that can make the copying process from the design to the actual building more efficient and accurate, but BIM technology itself does not have the ability to change the copying model. Therefore, in the application of BIM technology, the use of Civil 3D for replication only provides a "transfer station" for the replication relationship, but in essence, it is still a different way of replicating.
Fourth, the deductive relationship between structural drawings, construction drawings and design drawings
(1) Civil engineering analysis of structural drawings, construction drawings and design drawings
If there is a replication relationship between architectural engineering design drawings, architectural models, and physical buildings, what is the relationship between structural drawings, construction drawings, and design drawings? To study this problem, it is necessary to have an in-depth understanding of the engineering nature of structural and construction drawings. The architect is responsible for drawing up the design drawings of the building project in order to fully show the exterior and internal structure of the building. Design drawings often combine aesthetic and artistic elements. The role of a structural engineer is to be responsible for developing the structural drawings and construction drawings required during the construction process. For structural engineers, the development of structural drawings and construction drawings is their core responsibility, which is mainly focused on ensuring the safety of building structures, solving many technical problems such as material mechanics, structural mechanics and soil mechanics, and taking into account the application and consumption of materials. In addition, it is necessary to consider various factors such as wind pressure, and formulate the foundation and construction plan according to the actual situation. The design of underground buildings must take into account multiple factors, such as the distribution pattern of the underlying pressure, the gravitational stresses of the building itself, and linear and strip loads. In the process of drawing structural drawings and construction drawings, engineers need to choose to use steel structures or reinforced concrete structures according to specific needs and safety factors, and carry out corresponding reinforcement calculations.
In the construction industry, both structural and construction drawings are crucial, and one of the key parts is to provide the necessary structural framework for a building. The structural engineer will formulate a scientific and reasonable design plan according to the architect's design ideas, and ensure that the structural design is completed in an efficient and practical way, while clarifying the materials used and the specific structural design. When designing the scheme, the designer must hold the corresponding professional qualifications and carry out the design work in accordance with the national architectural design standards. Structural drawings are actually the process of translating design drawings into actual building structures, but their expression is based on engineering and mechanical-technical methods. In the process of engineering design, drawings cover many key elements, and each element carries a unique function. These factors are closely linked, interacting, and mutually constraining, resulting in a rich diversity and complexity across the subject area. Construction drawings are considered the final link in the design process. After a detailed description of the structure, appearance, materials used, and construction process of the entire building, construction drawings are designed based on these descriptions. On the construction drawings, every little detail of the building, construction techniques and related operation steps are described in detail. Based on the construction drawings provided, the construction team converted the building from a 2D design drawing to a 3D solid structure, thus completing the construction work of the building project. This series of processes ensures the smooth execution of the entire design process.
As a result, both structural and construction drawings incorporate a lot of mental work, and although they are similar to the methods of architectural engineering design diagrams, there are significant differences in the "way of thinking". Based on the foregoing, we can observe that there is no direct replication relationship between the structural drawings, construction drawings and architectural design drawings.
(2) Analysis of the deductive relationship between structural drawings, construction drawings and design drawings
Construction according to the design drawings is reproduction, and the use of the design drawings of others with copyright for construction without permission infringes copyright. Although there is a reproduction relationship between the architectural design drawings and the building, the reproduction between the structural drawings, construction drawings and architectural engineering design drawings does not constitute reproduction within the meaning of the Copyright Law. The use of structural and construction drawings without the permission of the copyright owner will not infringe the right of reproduction.
Derivative works are created on the basis of existing works, so the structural drawings and construction drawings generated by retouching, processing and processing based on the existing architectural engineering design drawings and combining the needs and characteristics can also be regarded as derivative works. Therefore, in the context of derivative works, structural drawings and construction drawings can be protected accordingly through the derivative right. In addition, in the application of BIM technology, Civil 3D can generate corresponding structural and construction drawings, and is innovative and can form works. The interpretation of "schematic drawings" in the civil copyright law can be expanded, and the structural drawings and construction drawings can be regarded as a unique graphic work, so as to provide more targeted protection.
5. The current situation and identification criteria for the infringement of the copyright of architectural drawings
(1) The current status of infringement of architectural drawings
In the above-mentioned relationship between reproduction and deduction of architectural drawings, the infringement of architectural drawings is often accompanied by the acts of "reproduction" and "deduction". In practice, there are often cases of infringement of architectural drawings, many of which occur after the drawings have been obtained for the purpose of study or scientific research. Because architectural drawings are designed specifically for a particular building, have a relatively small scope of influence, and are influenced by the view that architectural works are not purely works of art, but a combination of technology and art, the protection of architectural drawings by the judiciary is clearly insufficient compared to other art forms with a wide range of audiences. In judicial practice, the infringement of architectural drawings is mainly based on the intentional infringement of physical architectural works, and the core issue actually returns to the infringement of architectural works. However, due to the secrecy of architectural drawings, the relevant management agencies usually pay more attention to the protection of architectural works than architectural drawings. This is evident in the limitations of the law on the protection of architectural drawings. Therefore, in practice, legal remedies against such infringement are relatively lacking.
Due to the originality disputes and non-copyrightability of drawings produced under the guidance of BIM technology, there are more and more infringements of related structural drawings and construction drawings, and even the owners of drawing rights are not aware of the existence of infringements. When dealing with the corresponding infringement lawsuit, the tortfeasor usually invokes "fair use" as a defense, and the plaintiff faces a dilemma of proof. In the face of the current situation, the key is to have a clear understanding of the right of reproduction, the right of deduction, the scope of definition and the analysis of originality of architectural drawings according to the specific situation of copyright infringement of architectural drawings in mainland China.
(2) Criteria for determining infringement of architectural drawings from a multi-dimensional perspective
The end result of the infringement of architectural drawings usually leads to the infringement of architectural works. With architectural drawings, you have the basis to accurately replicate from one building to another. Therefore, when we adopt a reverse thinking approach to assess whether there is infringement of architectural drawings, we need to dig deep into the reproduction connection between the architectural engineering design drawings and the actual building, and analyze them in combination with the principles of copyright law, such as possible contact and substantial similarity. When assessing the infringement of architectural drawings, we still need to judge according to the principle of "substantial similarity". More specifically, the infringement of architectural drawings is usually manifested in two reproduction relationships: "from plane to plane" and "from plane to three-dimensional".
1. Infringement of architectural drawings from the perspective of traditional reproduction
This is the most common type of infringement of architectural drawings, but it should be divided into three situations: two drawings are architectural engineering design drawings, two drawings are construction drawings (or structural drawings), one drawing is architectural engineering design drawings, and the other is construction drawings (or structural drawings). In the first two cases, since it is a planar-to-planar copy, both drawings can be regarded as graphic works (whether they are design, construction and structural drawings of the construction project). Therefore, when determining whether the composition of the two drawings constitutes substantial similarity, it is necessary to compare the core elements such as characters, diagrams, and lines in the two diagrams, and consider the interior layout and orientation shown in the diagrams, the design of each line, the spatial location distribution, the staggered pipeline, the distribution of elevators, and the setting of safety exits. If the two drawings show a high degree of identical characteristics, i.e., they constitute substantial similarity, and the possibility of contact will constitute infringement. This case focuses on the "reproduction relationship", and the determination of infringement is relatively simple. However, the determination of infringement in cases where "one drawing is a construction engineering design drawing and the other drawing is a construction drawing (structural drawing)". At this time, the evaluation of "substantial similarity" only considers the "graphic factor", and should be combined with the engineering principles to think about whether the graphic architectural engineering design corresponds to the other graphic engineering structure design, that is, to judge whether the structural drawings, construction drawings and the corresponding engineering design drawings accurately correspond in terms of safety, reliability and accuracy. If the two are compatible, indicating that the buildings referred to by the two are the same, they constitute substantial similarity and thus constitute infringement. Obviously, unlike the above two situations, this type of infringement needs to be judged not only on the "reproduction relationship", but also on the "deduction relationship", and the combination of the two can reach a definite conclusion.
2. Infringement of architectural drawings from the perspective of xenocopy
The traditional legal framework is designed to govern fragmented practices and practices in construction projects. As a result, traditional contractual frameworks, such as the design-bid-build EPC model, are used to accommodate decentralized work arrangements and are no longer suitable for BIM collaboration that applies models to guide and supervise the construction process. Under the application of BIM, the infringing party obtains the architectural drawings through a certain way and constructs the corresponding physical engineering project accordingly, which is actually a unique way of copying the architectural drawings. The process of plane-to-stereo copying is more complex than plane-to-plane copying. If the substantial similarity of a drawing is judged only as a graphic work, it may focus too much on the drawing itself and ignore the characteristics of the building, which may lead to the failure of the protection function of the architectural work corresponding to the drawing. Therefore, when assessing the substantial similarity from plane to three-dimensional, we should not simply compare the text, shapes, lines and other architectural features on the CAD drawings of the two architectural drawings, but also delve into the structure, design and spatial attributes of the physical buildings they represent. At the same time, we should pay more attention to the overall building form, spatial structure and layout shown on the architectural drawings, and comprehensively evaluate those relevant standards that are substantially similar. It should be emphasized that there are two different manifestations of this infringement, one is from construction drawings (or structural drawings) to physical buildings, and the other is from architectural engineering design drawings to physical buildings. In the first case, it is first necessary to conduct a field investigation and research on the corresponding physical building on the basis of an in-depth understanding of the construction drawings (or structural drawings), and determine the one-to-one correspondence between the details on the drawings and the physical building components through experts, so as to determine the substantial similarity between them. For the second scenario, although the operation steps are more cumbersome, the core principle is a combination of the previous methods. First of all, the similarity of the architectural engineering design drawings and the matching construction drawings and structural drawings is determined according to the steps of "drawing copying from plane to plane", and then their substantial similarity is determined according to the standard of "from construction drawings (or structural drawings) to physical buildings".
epilogue
As an emerging technology for construction industrialization, the roles and legal responsibilities required for BIM projects are not yet clear, and the application of BIM technology in the industry has a serious lag in legal and commercial structures, especially in terms of intellectual property rights. Because in the application of BIM technology, the BIM model can replace the drawings as one of the final products delivered to the owner after the completion of the project, which contains a variety of information completed by multiple participants in collaboration and interdependence, including software, connotation, details, expression language, expression style, etc. As a result, each contributor may have copyright-related considerations regarding the realignment and use of their models, creating new conflicts over who should own the final model and protect the designer's intellectual property. If this issue is not resolved, it will lead to unclear copyright ownership and confusion of roles and responsibilities for architectural drawings produced by BIM applications, which may lead to project participants taking responsibility that they should not have in the sharing and use of models. Therefore, in order to reduce the obstacles in the application of BIM technology, the legal system related to intellectual property rights should be updated from the aspects of BIM replication methods and information models, so as to promote the deepening of the industrialization of new buildings in mainland China.