This article is written by Satyavada Valli Rachana, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.com.
Table of Contents
Introduction
When an app is developed, it invites many legal implications, legal liabilities, risks and most importantly it invites intellectual property rights. Therefore, certain crucial steps need to be taken care of in order to protect the app and the app developer from the competitors as well as from the app users.
While creating an app or planning an app, the developer has to understand all the aspects that are essential for fulfilling the legal needs. The first step in the app developing process involves drafting concrete app development contracts. The app developer needs to understand that ‘app development contract’ is necessary as it protects both the client as well as the developer as they come into an agreement that they both will abide by the contract in case of any discrepancies that arise in the future.
Also, the app developer has to ensure that his/her intellectual property rights have been guarded. This is because by acquiring the intellectual property protections the app developer can protect his/her work from theft, copying, infringement problems that may arise in the future.
There are few tactics that can be used by the app developer for protecting his app while developing it. It can be done by executing legal agreements like NDA, Non-competent agreement, copyrighting, patenting the app, documenting the code on how to use the app.
How copyright agreement for an app developer works?
There are many app developers. It is a simple thing to develop an app. In android, an app is a JAVA script. It is a particular way to write. The app developers go and literally write. Not specifically the apps but the script software’s. When the software is written, there are many open sources that people take. When an app developer develops an app entirely based on open software there is no protection. When an app developer sits and codes anything that goes beyond the open source software is copyright protected.
And there is something which is called Licensing. There is a platform called ‘word press’ where millions of websites are hosted. Anything one wants to develop to be worked on ‘word press’ should be an open source.
Google, android is an open source. If a platform is an open source it always has a policy to bring on that platform something that is open source. If the app developer wants to protect the work and put it on that platform, they won’t allow. May be there is a possibility that licensing model of android and Google app store may be of an open source. But if it is not there the work is copyrighted. But the android is an open source.
To know more about Copyright please visit
Case Law
Oracle Am., Inc. v. Google Inc. – The court in this case held that Northern District of California wrongly interpreted that Google did not infringe copyrights that Oracle held on a computer programming platform, when it was clearly transparent that the former copied the declaring code and the overall structure, sequence, and organization (“SSO”) of 37 packages that were part of the platform to develop its own software.
According to the Court, the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection. The Supreme Court has made clear that neither the Copyright Statute nor any other says that because a thing is patentable it may not be copyrighted.
The copyright agreement
Copyright is one of the crucial steps in protecting “creation”-intellectual property. Once the app developer executes the idea, it can be protected under copyright law. An idea must be expressed in order to claim copyright. The code and UI elements of the app can be protected by copyright. This will not let others copy the same. But the only drawback is that anyone can improvise, alter, or make a variation of the same. Also, one can copyright the specific/ printed words, topics, concepts, creative stories and other artistic works.
Depending on the specific information in the application, the developer may have the right to place copyright materials into the app. Some copyright info is available to the public for various reasons such as for educational purposes or to help with other processes.
The TRIPs agreement, to which most countries in the world are signatories, provides that copyright protection does not extend to ideas, procedures, and methods of operation. Even where copyright protection is available, the protective ‘layer’ might prove to be thin; it might only be protected against verbatim copying, while emulating the more amorphous ‘look and feel’ of the desktop, though not completely replicating the actual visual appearance of it, may not be sufficient to trigger infringement.
PERMISSION FROM THE OWNER WITH LICENSE
The permission from the owner with license needs to be taken when there is a situation that a person needs to use the valid copyrighted work of the owner. So, to use the work, the person has to reach the right owner to acquire permission to use the work by paying the owner a certain amount of consideration/royalty for the license/use of the copyrighted work. After agreeing the terms of use and negotiating one can make an agreement in writing.
Also, if the owner of that creative work is no longer alive, or has not been alive in many years, then the work may no longer have protection under the copyright.
Licenses purchase
The app developer can only make use of the copyright material until and unless he gets the work licensed by paying the royalty. The license agreement mentions all the do’s and don’ts of using of that copyright material. Its use is limited.
If the license is temporary and has restrictions for the use of the content, the app developer may need to communicate the needs to the owner of the work. Although, the app developer licensed the work, still the use of that work is not absolute. It is limited. If at all the person can apply fair use, then there is no need to purchase a license usually.
Rule of fair use
One can make use of the copyright work if rules of fair use are being followed by that person. The person can use the copyright work for educational purposes, reviewing it or for transformative factors. Copyright work cannot be used for monetary benefits. If it is used for gaining monetary benefits, infringement action can be taken against them by the owner of the copyright work.
If an app developer is using copyright work to educate the public about something or to transform the original work into something new and innovative, where he is not gaining any monetary advantage then he or she may not need to contact the IP owner. However, it is still often important to communicate the needs and explain what he or she will do through the application to the IP owner.
Owing the code
The first and foremost important thing to be done by the app developer is to copyright the code in the app. By owning the code the risk of infringement, theft of the work will eventually decrease. In case the program is made as such that it requires educating people, then the app developer can allow the copyright work for the purpose of fair use. But that doesn’t immune the person from asking permission from the owner of the copyright work.
Basically, the Intellectual property is a creation. It can be artistic works, written or published material with reference to scenes, storytelling etc…With fair use and the changes to the original work, it is possible to use copyright materials in the application.
If the app developer took all his own ideas and executed them from the scratch then all the IP of the software belongs to him exclusively. For a lot of mobile apps it takes a team of developers and software from different sources to create it. One can find readymade software’s in vast areas; they can be primary sources or secondary ones. In order to take them, one has to read terms and conditions of the use, their privacy policy etc… and have to make sure license has been granted before using/reading it. Does it allow you to use the code for any purpose? Do you need to get permission from the original source?
If the work involves multiple programmers, the title must be given by keeping in mind that all the rights of that particular software work are owned by one entity. If for making an app, a group of programmers are hired then a contract has to be made by clearly stating the owner of all the IPRs to the software.
If it involves working with other programmers and plans to own the app together, it is required to state clearly who owns what and how the revenue from the app will be split.
Transformative work
The person that is developing an application that integrates copyright work can often place these materials in the program when the developer transforms the original into something new.
Basically, this work comes under fair use. So, the developer can improvise the old work and make it advanced or add more unique techniques that are relevant in today’s world.
The brand new work will be improvised version of the old one. Therefore, there won’t be any kind of similarities seen between them in any way.
Legal support
In order to prevent copyright infringement, the owner of that creation should approach a lawyer so that brief contract is drafted to protect the work. It may include clauses of fair use, NDA, and also to prevent infringement of the work.
Conclusion
Various intellectual property rights may protect aspects of an app. The extent to which such protection is available depends on the elements of the app in question, and on the jurisdiction involved. Reliance on some intellectual property rights does not require upfront costs associated with registration, while other intellectual property rights come into existence only after registration.
As a general rule, where it is clear to an app developer that a certain market would be central to its marketing efforts, it is advisable to consider if registered intellectual property rights, such as trademarks, designs, and patents are available. A tapestry of registered and unregistered rights could prove essential when fending off imitative competition. It gives the proprietor the flexibility to fall back on one intellectual property right when another one is successfully challenged.
App or software development contracts are not simply legalese. Developers should seek as much protection as possible while working for clients. In the same manner, clients must also seek to ensure that on every possible point, the developer is stretching their technical edge to avoid doing what is expected of them or claim what possibly belongs to the client.
Every app development contract should involve ample input from both parties. It should be in as clear language as possible, and understood by. A robust dispute resolution mechanism within the contract will help in moving past sore points that might grind the project to a halt if one were not present.
With growing experience, developers will be able to determine what a necessary inclusion in an app development contract is. Key determinants include project scope, project timeline, fees, payment structure, and so forth. A contract places mutual boundaries that propel the project forward.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
