Legal Risks of Virtual and Augmented Reality on the Construction Site
Stites & Harbison Client Alert, June 19, 2019
Co-Author, Kelly Ball, Summer Associate
The construction industry is known for innovation and creative problem solving, and the industry’s early adoption of cutting-edge virtual technologies is no exception. Virtual reality (VR) and augmented reality (AR) have the potential to expedite the building process and minimize risks by allowing project team members and clients to see and feel how a finished product will look, and to identify problems before they become worse. Both VR and AR allow users to digitally experience something before physically erecting or transforming it, which saves both time and money. Emerging technology, however, rarely arrives without accompanying risk. As VR and AR products become more prevalent and accessible to all involved in the construction industry, savvy industry leaders must take steps to shield themselves and their teams from the legal quagmires associated with adopting these tools.
Uses for VR and AR in the Construction Industry
Although VR and AR equally offer a range of benefits to the construction industry, each has distinctive qualities. VR offers a full-body experience by transposing the user through visors or goggles. Distinct from Building Information Modeling (“BIM”) technology which is typically viewed on a computer screen, VR immerses its user in a virtual rendering of the design space that the user can navigate much like a physical space. More generally, VR blocks out the rest of the room and immerses the user into a different reality that is completely computer-generated. AR, on the other hand, has the ability to overlay the user’s current reality with virtual images. Modern AR devices capture information about the surrounding world and recognize objects within the device’s vision, then allowing digital manipulation of and interaction with the space. For example, the JBKnowledge product SmartReality makes this technology accessible to anyone with a mobile device; the app can superimpose a 3D model on two-dimensional plans, on an image of your project’s site, or even in front of the site itself.
While there are several ways VR and AR can be employed in the construction context, this technology is most commonly used to portray how a project should appear, either as the end user will experience it or at a particular stage of construction. Both VR and AR can be used throughout the construction process and may be employed before the project begins, during the project, or after the project has been completed. VR is particularly effective in the pre-construction phase, as design changes can be tested in the virtual world and not in the physical space, decreasing costs and time delays. AR, on the other hand, may be more useful when construction is ongoing – with AR, design elements or 3D models can be overlaid and combined with real-time images of the project. This increases the user’s spatial awareness and eases micro-level design planning and implementation efforts.
AR and VR can also decrease coordination and construction administration efforts by allowing team collaboration even when all team members are not physically present on a job site at the same time. For instance, AR allows users to take notes and share enhanced video views of any mistakes or design issues, then send the information to remote project team members in real time. Alternatively, VR allows offsite parties to virtually tour the project site and monitor construction progress. On-site and remote project team members can quickly consult and employ the information transmitted through either technology, conserving the valuable resources needed to make, communicate, and execute decisions.
AR and VR’s coordination benefits are particularly useful in situations where stacking trades is necessary. On the front end, the extreme design detailing enabled by VR modeling allows designers to account for trades necessary at each stage of the project in addition to anticipating future access and usability needs within the finished structure. During construction, AR can assist tradesmen in efficiently installing materials by providing visual aids indicating where additional elements need to be installed in the future. Information related to the location of electrical, mechanical, and other components can be accessed on site in layers easily removed and added from the user’s field of view. These resources eliminate costs and delays associated with frustrating rework and increase the quality and usability of the final product.
Beyond design and coordination implements, another way VR and AR may be used in the construction industry is with worker training. In particular, VR has been an effective training tool in helping workers learn to operate heavy construction machinery such as cranes or forklifts. VR training solves many of the safety issues that exist with traditional training because it allows for the recreation of actual hazards and construction sites without having to recreate a physical construction simulation or risking property damage or injury. Off-site virtual training also allows for repetitive practice, enabling users to further develop skills in a safe environment.
Tech industry leaders are also developing AR training devices for construction use, providing users with computer-generated direction and images supplanted into reality to allow on-site skills training in real time. An onsite laborer can use an AR device to see his or her work with overlaid instructions, images, videos or animations, as well as collect and relay visuals to an offsite supervisor to seek guidance. In providing these tools, AR and VR training devices hope to be a major player in providing a solution to the industry-wide skilled labor shortage.
The primary legal issues arising with AR and VR technology include design error liability, safety concerns on and off the construction site, data privacy, and intellectual property concerns.
First, when multiple parties can easily contribute to a singular design program file, assigning liability for design mistakes can be problematic. Although this issue is not unique to VR and AR applications in construction, as these issues also arise with the use of now-ubiquitous BIM programs, VR and AR products build on existing risk. VR and AR can blur the lines between customary designer/contractor/end user roles on a project, allowing each party input into the design and shifting traditional risk allocation. For example, if the dimensions change multiple times over the course of a project due to multiple designers’ and contractors’ varying input, contractor material lead time can suffer, causing project delays.
Next, while construction industry tailored AR and VR applications are frequently geared towards increasing project safety, careless use of these products may increase the risk of accidents. AR and VR technology create an inherent conflict between sensory-distorting products and the need for vigilant awareness of physical conditions existing onsite. When using VR technology, the user may wear goggles or a headset that enable the user to view a virtual space blocking the user’s view of his or her actual surroundings creating an obvious safety threat. Even with AR technology, the distraction of images supplanted into the existing space can obfuscate or distract the user from hazardous conditions nearby.
Ultimately, responsibility for preparing and enforcing safety guidelines for the use of AR and VR technology on-site should be allocated by contract. If the use of VR and AR is not addressed in the parties’ agreements, but the technology is used anyway, all project team members involved expose themselves to risk. Team members making these products available on a project must be sure to disclaim liability for use by other parties, and general contractors should include proper use protocols in their safety plans.
Another exposure companies face when using AR and VR is cybersecurity and vulnerability to hackers. Since confidential or proprietary information may be stored in this technology, a cybersecurity attack on a product’s provider or the user could threaten the security of the user or the customer’s sensitive information. Additionally, cybersecurity breaches can result in project specifications being intentionally or unintentionally modified, causing delays, mistakes, or worse. The likelihood of cybersecurity breaches of construction AR and VR applications is still speculative, but as use of this new technology increases, it is important to consider your business’s exposure to new and growing security threats. Users of AR and VR should be cautious regarding the services that they utilize, and ensure that their data remains safe in the hands of the companies that provide the services and applications. Parties to construction contracts might require team members using AR or VR on the project to carry cyber liability insurance to cover losses stemming from a data breach.
Finally, the ownership, licensing, and use of AR and VR technology are intellectual property issues that must be considered by any business using these products. With the myriad of potential users on a construction project, disputes regarding the right to use AR and VR programs under pre-existing third-party contracts may arise. Additionally, project team members that engage with AR or VR platforms should carefully negotiate the ownership rights of any intellectual property that may be created through the use of the AR or VR platform. Memorializing these agreements in well-drafted contracts will help to alleviate intellectual property issues, but these potential problems must be considered and addressed prior to the use of AR/VR platforms to avoid costly disputes down the road.
The use of AR and VR technology is rapidly expanding across the construction industry. These platforms are useful in increasing design detail accuracy throughout the building process, skills training, increasing site safety, and in numerous other ways. However, it is important to address the use of AR and VR technology through contractual risk allocation of safety, cybersecurity and intellectual property concerns. If you plan to use AR or VR on an upcoming project, consult the Construction Services Group at Stites & Harbison for experienced, creative advice on protecting your business’s interests when employing the newest and best technology obtainable in the industry.