Shaping the future success of the UK's National Digital Twin with early legal input

The UK's National Digital Twin programme (NDTp) is an impressive, ambitious project to create "an ecosystem of connected digital twins to foster better outcomes from our built environment". The project is run by the Centre for Digital Built Britain, a partnership between the University of Cambridge and the Department for Business, Energy and Industrial Strategy. Dame Wendy Hall, member of the UK AI Council and a leading voice in the UK's advanced digital technology sector, has called it a genuine "moonshot".

A digital twin is a virtual model of something physical. The starting point is typically its physical shape. Data can then be layered into the model, which might include how it moves, the processes which it undertakes, how it performs, etc. Real time data about the asset, for example from specialist in-built sensors and monitors, or electricity usage from equipment, can be fed into the digital twin so that it becomes a virtual mirror of the physical thing. The digital twin can be used to monitor the actual asset, to control and manage it, or to assess the impact of possible changes, before trying them out in real life. They can be invaluable at the design and planning stage. Digital twins are essentially a data-rich, advanced application of Internet of Things technology.

A sophisticated digital twin of a building, for example, would provide operators with intuitively understandable, instantly available information about its operation: the effectiveness of its ventilation, the efficiency of the air-conditioning, the status of the fire alarm detectors, possible defects in the supporting framework, or compromised security systems, levels of pollutants depending on footfall.

The central ambition for the NDTp is to transform the construction and infrastructure sector by bringing together existing and future digital twins, data and information about the built environment, in order to improve how infrastructure is built, managed and operated. Public and private participation is anticipated. The project aims to create benefits for society (consumers and tax payers), the economy (better productivity from higher performing, more resilient infrastructure), business (opportunities and efficiencies along the whole construction value chain) and the environment (better resource efficiency, enabling a circular economy).

Legal issues explored

Tamara Quinn, Intellectual Property and Data partner in the UK Commercial team, is part of an expert group of lawyers working with the NDTp. The group held a series of workshops towards the end of 2020 to explore the legal issues and challenges which the NDTp needs to address in order to achieve its goals. The full report of the roundtable workshops is available here (scroll down for the pdf link).

The themes to emerge from the discussions are summarised as follows:

• Intellectual property, data and access issues go to the core of this project and will be a critical aspect of the overarching governance arrangements for the NDTp. Fundamental issues such as the structure of liability and warranty arrangements in relation to data in the shared access systems remain to be considered (the expert group recommended further studies on these issues). It will be essential also to provide clarity around ownership of intellectual property which may be generated from the project, or from having access to the NDTp.
• Governance: clear, top down governance is needed for the NDTp, including clarity around what it can/should/will be used for. Governance needs to be able to evolve and must be developed with representation from the private and public sectors, regulators and private citizens. Oversight of the project is a significant consideration, not least as it will feed into trust in the initiative from both participants and those accessing its data. Further exploration is needed as to whether a legislative basis and framework is needed for this initiative or whether it should remain a purely voluntary or contractual obligation – either way, involvement of relevant regulators will be essential. It is clear that this project could generate significant public good, but care will be needed so that the NDTp does not generate asymmetries of commercial or competitive advantage. Governance rules will need to design equity into the framework, and provide for accountability and mediation.
• Early engagement to explore the technical ramifications of this project was welcomed by the expert group, helping to ensure that the programme is optimally designed around the legal and regulatory challenges, rather than having to be retrofitted and reshaped at a later stage. The group recommended taking a similar approach with the financial sector, to build in an understanding of how the project might impact on infrastructure funding, as well as the insurance sector, to consider how the project will be underwritten. The involvement of regulators will also be essential for designing compliance into this initiative.
• Creativity and innovation would be needed to shape the interaction of stakeholders. Contractual frameworks for these forms of data-centric collaborations are currently immature in relation to the built environment. The expert group noted the risk that the sheer complexity of this project might act as a disincentive for potential participants. Barriers to participation must be minimised wherever possible, and the benefits from participation made clear. Simple messaging will be essential. The governance framework for the initiative will be key in generating trust.

Overall, the NDTp has the potential to be a notably complex multinational stakeholder landscape, but none of the legal challenges were felt to be insurmountable.

Osborne Clarke comment

Digital twins are a hugely powerful application of Internet of Things technology and can be transformative for many sectors. The built environment applications – even at the level of an individual building – are reliant on collaboration and a common vision (as we discussed in our recent series). The technological challenge is therefore only one layer in these ambitious, multi-faceted projects. Smart cities take the concept to the next stage, building a jigsaw of connections across an urban area, potentially combining buildings, infrastructure, transport and ultimately the people who live, work and travel in the city.

Risk, liability and responsibilities are fundamental questions that must be clearly mapped out if these projects are to be a success. As a consequence, legal advice, contractual frameworks and collaboration arrangements sit at the heart of these projects. Our experience, drawn from a number of on-going smart city projects around Europe, is that these projects are still in their early, pioneering days. Each is unique, challenging the norms and requiring a considered and creative approach to resolve the legal challenges and deliver the central vision. That process is most effective when it is integrated into the thinking from the design stage of the project and continues to be fed in as the initiative evolves and emerges.

If you would like to discuss any of these issues further, please contact the authors or your usual Osborne Clarke contact.