Legal Issues for App Developers

The mobile app market is currently booming and shows no signs of slowing down. Owners of the major mobile operating systems are claiming ever increasing numbers of apps in their respective app stores and Tidman Legal has been fortunate enough to act for a number of developers. Experience has shown that each developer has their own particular needs and commercial goals, although a number of common themes arise during our discussions.

Copyright

Copyright in the UK arises automatically and is owned by the author of a work. Under the Copyright, Designs and Patents Act 1988, source code is classed as a literary work and attracts copyright protection immediately upon creation, although protection also extends to images, animations and sounds.

Developers should be aware that where the code is created by an employee under a contract of employment, the employer is deemed to be the author unless there is an agreement to the contrary. However, this principle does not extend to contractors under a contract for services, and developers who outsource work will need to ensure an agreement which addresses the ownership of the works created is in place before development commences.

Trade marks

Developers will often look to the future with a view to establishing themselves in a highly competitive market and setting themselves apart. A registered trade mark will assist greatly in this regard and will ward off most competitors seeking to take unfair advantage of an established reputation. Trade mark infringement matters are not necessarily complex and the Intellectual Property Enterprise Court has gained a reputation for dealing with matters quickly and efficiently whilst ensuring costs do not escalate unnecessarily.

Data protection issues

Many apps will not run on mobile devices in isolation and will want access to other data, such as details of the user’s social media account or details of contacts stored on the device. The Data Protection Act 1998 governs the current use of personal data and subjects developers and their wares to the same level of regulation as any other medium for processing personal data. The Act requires (amongst other things) that the processing of personal data must be adequate, relevant and not excessive. It must also not be kept for any longer than necessary.

This can pose problems for developers, many of whom will be looking to monetise their apps beyond the initial purchase price or in-game advertisements. Agreements with third parties for user information are commonplace and increasingly lucrative. Developers should ascertain how data will be used, review agreements with third parties, ensure they have appropriate safeguards in place and review their terms of use regularly. Speaking with an experienced solicitor will undoubtedly help, particularly since this is an evolving area.

With the forthcoming General Data Protection Regulation (GDPR) coming into force in May 2018, developers will no longer be able to rely upon pre-ticked boxes or silence to establish consent and penalties for non-compliance will be greatly increased.

Licence terms

The right to develop on a particular platform will always be subject to the developer agreeing to abide by the terms and conditions set down by the platform owner. Developers should familiarise themselves with these rules before commencing development to ensure they won’t have to pull the plug on their hard work at a late stage in the development cycle.

Furthermore, many developers will use code in the development process that is subject to an open source licence. Terms will vary between the different types of open source licence, although many will not allow developers to impose terms on derivative works which are more onerous than those of the open source licence. This can cause real problems, particularly where digital rights management (DRM) is used in an effort to reduce instances of piracy. The net result of this is that the wrong code on the wrong platform may render a developer in breach of licence terms and liable to having their app removed.

Independent developers may view legal advice as an unwanted expense in a long and difficult process. However, seeking professional legal advice at an early stage will avoid major problems arising later in the app development cycle.

If you have any questions on this article or require further advice on your app or software development, please contact us.

Tidman Legal is a firm of specialist intellectual property lawyers based in Edinburgh, Scotland.