The purpose of today's session is to raise awareness of the emerging legal issues surrounding ICTs. ICTs are Information and Communication Technologies - the modern/European name for IT. However, before that we have a couple of brief presentations to set the scene, and raise a few of the issues that may concern you. Firstly, Andrew Baldwin will briefly describe the eLEGAL project, a European funded research project led by Loughborough University. Then, Sue Langley will cover the work of CITE in this area, including the recently formed ‘Legal and Security Issues Project Group’.

I am Andrew Baldwin, Head of the Department of Civil and Building Engineering at Loughborough University.

As Clive said, I will now introduce the eLEGAL project, showing the work we are doing at Loughborough (and across Europe), but hopefully giving you some ideas for discussion later. The Information Society Technologies Programme is a major theme of research and technological development within the European Union's Fifth RTD Framework Programme (1998-2002). IST is a single, integrated research programme that builds on the convergence of information processing, communications and media technologies. IST has an indicative budget of 3.600 Million Euro, and is managed by the Information Society DG of the European Commission. The strategic objective of the Information Society Technologies (IST) Programme is to realise the benefits of the information society for Europe both by accelerating its emergence and by ensuring that the needs of individuals and enterprises are met.

Advances in ICT are enabling the construction industry to work ‘virtually with highly flexible groups of organisations collaborating on projects in the UK, across Europe and even across the rest of the world.  These arrangements rely on network technologies for communication. However, a range of legal issues are beginning to emerge which threaten to inhibit their growth and prosperity.  This is mainly due to the lack of solid contractual basis which govern the electronic exchange of information and documentation within and between such virtual enterprises (VEs). This results in a duplication of work, being done electronically and on paper, rendering ICT to be an extra cost rather than an enabler.  Examples of the emerging legal issues are proof of receipt of electronic data (such as drawings and emails), ownership of information, access rights, company Vs project information and handling object based information. These types of issue were the main motivation behind the formation of a consortium to undertake research in this area, in the form of the eLEGAL project. The main aim of eLEGAL is to define a framework for specifying legal conditions and contracts to enable a legally admissible (exclusive) use of ICT in project business.  In this way, all parties involved in the VEs, including SMEs, will be confident that there is a legal framework regulating their new ways of working leading to more trust and hence, improved business relationships.

The eLEGAL project undertook a survey of contracts used in the construction industry in the project participant’s countries •The use of ICT seems to be only intended to speed up the transmission process, but effectively has no legal validity. •However, the legislation to support technology may exist, but may not have been adopted by the construction industry within its contractual practices.

This study gathered examples of existing clauses and legal cases concerning the special field of Information and Communication Technology (ICT) in Finland, Germany, Italy and the UK. The analysis of some 3000 pages of German construction contracts [3.2.1] for large, technically advanced projects found few references to ICT's.  Similar position in other countries. Where mentioned, these references were typically the specification of a particular type of CAD software, for example AutoCAD 14 or later to be used on a specific project, or that 'data has to be valid, secure, well organised and properly managed'. In Italy, the situation is similar to that in Germany.  Where ICTs are mentioned in a contract the reference will be limited to specifying a drawing exchange format or a textual file format (such as a pdf file). This is further reinforced by findings from the UK study, which analysed the JCT'98 contract.  This suite of contracts makes no explicit reference to information technology or even, for example, email [a similar position to all of the standard UK forms of contract].

An increasingly popular method for providing online services is the use of an Application Service Provider (ASP).  These ASPs set up and manage services on behalf of clients, providing facilities and functionality for other project participants. Example = web based project collaboration system, providing central communications and data exchange, document management, etc. The eLEGAL study concluded that these arrangements should also be governed by contracts, both between the ASP and the client, and between the ASP and the other parties on the project. Service Level Agreements: Availability of services, security, backup of data, access privileges for different users, etc. Licencing Agreements: The ASP must be contracted to provide the services.  The User must obtain a licence for using the software and services. Intellectual Property Rights: Protection of the data stored on a project server - both from improper use by other project participants and from any risk from the ASP itself. The contracts within the project and with the ASPs should generally promote the use of electronic communications technologies for project data exchange and sharing.

Ponton Software Technology is a German software company with a specific focus on convergence technologies such as Internet-based e-commerce, interactive TV and content management. They will be developing the "contract wizard" and the "Virtual Negotiation Room”. SEIB-ITC is a German industrial end-user, specialising in software and system implementation for large projects, particularly in the construction sector. Eduard OTT is a German Lawyer and Engineer, who is managing the development of legal support for ICTs. VTT Building Technology is part of the Technical Research Centre of Finland.  It has extensive RTD experience in ICT support for project based work, especially in construction. FORTUM Engineering is a Finnish engineering company specialising in the turnkey delivery of energy systems. ENeF Enterprise Net Finland is a provider of ICT platforms for engineering project teams, including consultancy for inter-enterprise ICT use and management. Geodeco is a specialist consulting company based in Genoa (Italy) focussing on geotechnical engineering, earthquake engineering and information technology.

We all seem very comfortable with our traditional postal system that is fraught with  many danger but using electronic methods actually provides us with far greater security. Our group is aiming to prove that this is the case and show just how it can be achieved.

You have already heard about the eLEGAL objectives. CITE decided to take part in assisting this group because we were already receiving  questions from members about legal issues - and we did not have all of the answers. It seemed as if this would be an opportunity to air those concerns and benefit everyone.

Listed here is a taste of some of the issues brought forward at that meeting. 1.  Emails these days are becoming common place, but are they an OFFICIAL method of communication?  In many instances people are still requesting  the REAL information to be confirmed by traditional POST. 2.  Many people stick to paper based documents and the postal service  because the document can  contain a personal signature to support the information. There is no excuse now because any electronic document can be supported by an electronic version of a human signature. We have the technology. But this fact needs to be included in the contract. The EU directive decrees that electronic signatures are now permissible.

6.  What are the legal implications of delays to a project as a  result of a problem with an ASP?

The group discussed the need for changes in the contracts to include the need to acknowledge the use of electronic information exchange. AND agreed that as with other trading documents - common information standards should prevail.  1.  An invoice for instance has an invoice number, address, product codes and descriptions etc. 3.  There is every possibility of writing an XML standard for contracts. From our group discussions it appears that a software company has already looked into this and developed a software product for generating contracts. We are going to investigate this.

As I said before we have the technology and we should be doing it!

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