Читать книгу The 2017 FIDIC Contracts - William Godwin - Страница 38

Clauses 1.10 and 1.11 of the 2017 Red and Yellow Books and 1.9 and 1.10 of the 2017 Silver Book deal respectively with (a) the Employer's use of the Contractor's documents and (b) the Contractor's use of the Employer's documents. These are important provisions, especially from the Contractor's point of view and more especially from a design‐build Contractor's point of view.

The Employer's use of the Contractor's documents is dealt with in similar terms in all three 2017 contracts. There is, first, express provision that the Contractor is to retain copyright and other intellectual property rights in the Contractor's documents and other design documents made by or on behalf of the Contractor (in the Red Book this applies only to the extent the Contractor makes or prepares such documents). A licence is granted to the Employer by the Contractor for the copying, use and communication of the Contractor's documents and the other design documents, including making and using modifications of them, to apply throughout the actual or intended operational life of the relevant parts of the works. In the event of termination of the Contract, the Employer may continue to copy, use and communicate the relevant documents for the purpose of completing the works or, where appropriate, arranging for others to do so. Where the termination is, for example, for the Employer's convenience, the Contractor is entitled to payment. There is also an express prohibition on the documents' being used, copied or communicated to a third party by or on behalf of the Employer for purposes other than those permitted under clause 1.10 without the Contractor's prior consent.

So far as the Contractor's use of the Employer's documents is concerned, the Employer retains copyright and other intellectual property rights in the Employer's Requirements (Yellow and Silver Books) or Specification and Drawings (Red Book) and other documents made by or on behalf of the Employer, the Contractor being permitted, however, at his own cost to copy, use and communicate them for purposes of the Contract. There is also a prohibition on these documents being copied, used or communicated to a third party, except as necessary for the purposes of the Contract, without the Employer's prior consent.