The National Digital Twin Legal Implications

[Sarah Rock]

The National Digital Twin Legal Implications

 

It was with great foresight that the Digital Framework Task Group (DFTG) recognised in advance of furthering the National Digital Twin (NDT) programme that the legal implications would be plentiful and required debate at a high level. This proactive attitude to the legal side of the NDT is intended to provide initial thoughts and guidance for the DFTG going forward.

Lawyers are often seen as a last resort and are therefore too often forced to work reactively. This fresh approach by the DFTG will hopefully flush out potential pitfalls and provoke further legal debate in this fast moving and highly exciting area of technology.

An initial group of leading private practice lawyers gave their time to a series of legal roundtables to discuss and debate the possible legal outcomes of the NDT. The following participants brought their expertise in their individual practice areas:

·        Sarah Rock – Gowling WLG – Construction

·        Ian Mason – Gowling WLG – Financial Regulation

·        Diana France – HFW – Energy

·        Tamara Quinn – Osborne Clarke LLP – IP and Data Privacy

·        Clare Fielding – Town Legal LLP – Planning

·        Fleur Ruda – MHCLG Legal Advisors – Government and Public Good

·        Alan Stone – RPC LLP – Insurance

·        Serena Tierney – Veale Wasbrough Vizards LLP – IP and Technology

·        Naveen Vijh – BCLP Law LLP – Funding and Finance

The group met on four occasions, chaired by Sarah Rock and organised by Miranda Sharp and James Harris who led the NDTp Commons stream alongside Rachel Judson. The lawyers debated the initial responses about the NDT from each practice area, looked at the live National Underground Asset Register, had a general discussion to bring the various streams together and finally debated a theoretical case study of a digital twin.

The roundtable discussions have been converted into a report which was presented to the DFTG and is now available for review on the DT Hub.

The four main outcomes for further discussion were:

1.      Governance.

The legal side of the governance of the NDT was a point raised again and again during the roundtable sessions when looking at various aspects of the NDT. The legal experts felt there was a gap in governance which could perhaps best be filled with legislation or taking mandatory action at Government level. The legal experts felt that a top down approach would best work for this. There was concern to avoid competitive advantage being given to some, or even being perceived as such.

2.      Early Engagement.

The lawyers were all thrilled to be involved so early on with the NDT and saw it as very wise for the  DFTG to be proactive in the legal space, as opposed to the all too often path taken with legals of being reactive. The legal experts felt that a continued engagement during the early years of the NDT would be very sensible. In addition, it was suggested that other non-technical areas also might benefit from early engagement including specifically insurance, finance and regulators.

3.      Interaction of Stakeholders.

It was highlighted that there are plenty of legal challenges for the interoperability of the NDT. It was felt that existing contracts and methods of procurement would need to adapt to respond to the changes ahead. It was also noted that the DFTG needs to ensure its thinking is always a tad wider than the NDT. This was highlighted in particular in the energy sector where the interaction between the UK and international operators is critical.

4.      IPR, data and access.

The IP created in the NDT was debated at length and needs to be further considered. This point circles back to point one above. The governance of the NDT needs to set out clearly where the IP sits. Further the levels of access ought to be decided in a top down fashion. Liability and obligations regarding the NDT can be assessed and allocated but the legal experts felt that the Government lead approach would be crucial.

Overall, the legal experts posed various questions for the DFTG to consider in its implementation of the NDT. It was suggested that none of the issues raised by the experts were too difficult to resolve legally. The project was deemed achievable legally but only with continued legal engagement for further consideration, issues to be raised and ideas for solutions to be formed. Please do take the time to read and consider the legal report and the DFTG welcomes further comment on this.

The DFTG recognises the time commitment of the legal experts involved and once again would like to thank them for their efforts and their collaborative approach.

Roundtable Outcomes Report v1.0.pdf

[James C]

Early legal engagement is a great step/initiative.

A reader of the report might get the sense that one of the consequences though is a focus more on risk than opportunity though the recognition that one real market need is for insights does provide some counter-weight to that impression.  An NDT as a technical construct is anticipated to enable sharing of data between different sets of stakeholders, perhaps all the way up to open by default generalised data sets for public visualisation/consultation.  All very well for CAD/GIS/BIM and technocrats. Not very handy for insurers, actuaries, lenders, investors, operators, FM or even current and prospective occupants.  This is where the insights and analytics and the opportunity of secondary markets might come in.

It wouldn't be for the NDT or any of the contributors to develop or build such services but all these communities, with their varying needs and expectations, would find their needs well served by innovative service providers if the appropriate mechanisms, protections and governance could be found.

It would be a positive step to acknowledge and try to capture some aspect of this market facing response in your next steps.  

[James Harris]

@James C,

A very astute observation and excellent feedback. Thank you.

You are entirely right that there is a story that needs to be told on how the emergence of an NDT works outside of the technical narrative that we have chosen to lead off with; keeping fairly close to home in recent times, to ensure that the message has the right starting point. There are of course significant areas of impact on areas such as finance and underwriting, where the availability of better decision making and risk visibility mechanisms could do lots for the reduction of WACC/hurdle rates for infrastructure investments, or in reducing project or through-life premiums. The potential impact on financial liquidity, investor confidence, project pipelines and therefore employment and ultimately, national economic output, should be clearer. In fact, the contributors to the roundtable raised this point on several occasions, and we will certainly be expanding our engagement in these areas in the next phase.   

Similarly, the social value of this improved transparency, in terms of how it can create new or improved ecosystems of digital services for the general public, is an interesting angle. How we plan for, and control this secondary market (or whether we should at all) is a multi-headed problem. A necessary one to start talking about though. There are parallels to be drawn in the way the energy sector is beginning to manage the emergence of its own secondary data market, enabled by technology such as the Smart Meters that many of us now have in our homes. We're working closely with Ofgem and others to learn how their own governance arrangements are maturing, to inform our thinking.

The legal roundtable was the first step to pointing out where we had gaps. You are right that it does address threat rather than opportunity as a priority. We were looking primarily for the big hairy problems which might have caught us by surprise. There were also many areas of opportunity raised that were redolent with potential to explore further, but we chose to focus on the potential blockers this time around.

We've yet to solidify our activity plan for the legal sub-stream in the next phase, but I would be highly supportive of your recommendations. 

A long winded response, sorry. 

@Sarah Rock, @Miranda Sharp, have I missed anything?

James