Procurement · 14 August 2017

Essential legal considerations when developing a new app

Antibes, France - July 31, 2016: A man plays PokŽmon Go on the side of a city street as traffic passes by. The game player is in the process of collecting a Tentacool PokŽmon that hovers in the middle of the road.
An app’s source code and object display will automatically be protected by copyright

Business Advice expert, and Grid Law founder, David Walker guides readers through the essential legal questions that need asking when developing a new app.

There’s no doubt that apps are big business and if you hit on the right idea, they can be extremely valuable. So, if you’re developing an app, you need to think carefully about the legal implications of this.

Huge amounts of time, money and effort will be invested into developing a new app, so you don’t want someone else copying it or stealing your idea. Therefore, one of your first considerations must be how to protect it.

As apps are made up of many different elements, you need a combination of intellectual property rights to protect the various parts of it.

Copyright

An app is a computer programme, so copyright laws will protect the source code and object code of the underlying software. Copyright will also protect the graphic display, and any music, video, pictures or text that have been used within it.

This protection is automatic and there’s no need to register anything. If anyone copies any of these elements they will be infringing your rights. You have the right to stop them and potentially claim compensation from the infringer.

However, you have to prove that your app was copied. If the infringer can show that they created something similar, completely independently of you, then you’re unlikely to have a claim against them. Therefore, you need other forms of protection too.

If the app has been branded with your company name and logo, or even if you have created a new brand specifically for it, you can potentially protect this branding by registering it as a trade mark. However, you need to consider your choice of name and logo carefully because not everything is registrable.

For example, if the name is descriptive of what the app does, rather than distinctive, you can’t register it. Also, if someone has already registered a trade mark for the same or a similar name, they may be able to block your application.

You should therefore carry out a trade mark search before settling on a name. For more information about branding issues, please see my previous article on overcoming branding issues for a new business.

The app may also be a collection of information in which case it could be classed as a database and qualify for protection as a database right.

Patents can, in very specific circumstances, be used to protect computer programmes. If you think that your app contains some ground-breaking technology which might be patentable it’s best to take specialist advice as soon as possible.

However, you need to be extremely careful to ensure that the invention is kept a secret until protection is put in place. This is because any public disclosure of the invention would mean that it’s no longer new and this is a fundamental requirement for obtaining patent protection.

When you know how to protect the app, you need to think about who’s developing it. Are you developing it in-house or are you going to engage a developer to do it for you?

Who is developing the app?

If you’re developing the app in-house, any intellectual property rights created by your employees in the normal course of their employment will automatically be owned by you, the employer (or your company if that’s the employer).

However, if you have engaged freelancers, or an agency to develop the app for you, they will own all of the rights until they are specifically assigned to you. Therefore, you must have a proper written agreement with them that assigns all of the rights to you. If you don’t, you won’t own the rights to the app, even if they say you do.

As you’re reaching the final stages of development, you will be thinking about distribution. Your app will most likely be distributed through an app store, in which case you will probably use their standard terms and conditions. These should have all the standard clauses covering payment and protection of your rights, but it’s still best to check that they do cover everything you need them to.

If you don’t use the app store’s standard terms and conditions or you make your app available for download through your own website you will need to have your own terms and conditions. This is important, even if you’re giving the app away for free because you will be entering into a contract with the end user.

The terms and conditions will have many standard clauses to protect you and your app, but there will also be specific terms depending on what the app does. For example, if you’re collecting any personal data, you must comply with data protection laws.

If you’re making any sales through in-app purchases, you need to make it clear what you are charging for, how much and what the customer will receive in return.

My previous article on terms and conditions will have some useful guidance for you when you’re preparing your terms of business.

If you have any advertising in your app you need to ensure that it’s appropriate for its intended end user. A games app for children is likely to have very different advertising (if any) than a productivity app for adults.

The app market is still in its infancy. It’s less than a decade old, but it’s maturing fast. Now, we even have a TV show called “Planet of the apps” where developers can pitch their ideas for an app to a panel of investors.

If people are prepared to invest serious amounts of money into the development of an app you can be sure they will want “the legals” watertight. So, if you have an idea for an app this is something you should consider right from the start.

If you have any legal questions about developing a new app email me at editors@businessadvice.co.uk and I’ll happily answer them for you

Find out how to get your new app to stand out in the App Store

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ABOUT THE EXPERT

David Walker is the founder of Grid Law, a firm which first targeted the motorsport industry – advising on sponsorship deals, new contracts and building of personal brands. He has now expanded his remit to include entrepreneurs, aiding with contract law, dispute resolution and protecting and defending intellectual property rights.

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