These web-based project collaboration tools involve the creation of a secure project-specific website, which is used as the repository for all project information. This enables members of the project team to share information and communicate with each other more readily.
The types of contractual relationship that arise in this environment depend on the identity of the application service provider, or ASP. If the application is supplied by a third-party ASP, the provider will have a commercial contract with its customer under which it will earn licence fees. Whether the application is being provided by a third-party ASP or one of the project participants, the provider will license the use of the project collaboration application, on terms, by means of an end-user licence. This will seek to protect intellectual property rights in the application.
It is worth remembering, however, that these contracts will be designed to protect the ASP's interests and will not necessarily regulate the use of the application. The following three points are important issues that need to be agreed by the project team but may not appear in the ASP's standard terms and conditions.
Contract notices
Standard form construction contracts typically contain obligations on the parties to communicate by serving and receiving specific formal notices, such as those relating to extensions of time, applications for loss and expense, and rights of suspension and determination. The problem with serving these electronically is that most standard form contracts do not consider the question of electronic communication. For example, JCT98 says that where the contract does not specifically state the manner of giving such notices, they shall be given or served "by any effective means to any agreed address". Would serving a notice by posting it on a project website fulfil this requirement? It is an effective means, but can a website be said to be an "address"?
The notice provisions in standard form contracts will need amending to deal with this issue, as they would if simply using email for serving notices. Amending a standard form to deal with the use of email should be fairly simple – in fact, many contracts allow for service of notices by email. However, when using project websites, it is worth remembering that more specific amendment may be needed.
The evidential value or weight given to an electronic document is not prescribed. The court can, and will, enquire into its authenticity – is it genuine? – as well as its integrity – has it been altered since its creation?
Admissibility of electronic communication
UK legislation now provides that where a statement is admissible it may be proved by the production of the document or a copy, which may include an electronic copy, authenticated in a manner that the court may approve. However, there are no special provisions for computer evidence, nor is the evidential value or weight to be given to a document prescribed. The court can and will enquire into the authenticity of a document – is it genuine? – as well as its integrity – has it been altered since its creation?.
In this context, two documents are important. The Code of Practice and Compliance Workbook for Legal Admissibility and Evidential Weight of Information Stored Electronically (PD 0008) and BS 7799 – The Standard for Information Security Management deal with the legal implications of electronic storage systems and the means by which the integrity of an electronic communication may be demonstrated in a manner acceptable to a court of law.
It is important to be aware that, although the code defines best practice for the electronic storage of information, compliance will not guarantee legal admissibility. It will, however, be persuasive when a court is establishing the weight and cogency of the evidence.
Copyright in drawings and other designs
Architects have expressed concerns about the effect that online project collaboration tools will have on their copyright and designs. By providing those designs for use on a project, it is likely that they will be granting an implied licence to the project team to use them for the purposes of the project. However, the designer's appointment will usually deal with this, and from the designer's point of view, the benefit of having an explicitly granted licence is that the ambit of the rights granted can be precisely defined.
The problem with electronic copies of designs is perhaps more technical than legal: designs have the same legal protection as in the paper world but the ease with which unlawful copies can be made is dramatically increased.
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