The dramatic rise in the popularity of mobile technology and the widespread use of smart phones, tablet computers and other mobile devices has led to the development of an emerging market in the design and production of applications for mobile use. These applications, known more popularly as “apps” come in all shapes and sizes and cover literally thousands of different topics. Weather, travel, mobile banking, music, communications, calculation, news and games, to name but a few, are items that enhance our use of our mobile technology. Not surprisingly, software developers have recognised the potential gains to be made through the creation of a popular new app with many new apps being introduced to the market on a daily basis.

In this article we look at some of the legal considerations that may arise when developing a new mobile app and we divide these into pre-production and post-release issues.

Legal Issues Prior to Production

Business Structure

Before embarking on the development of the proposed app it is essential to consider the legal structure of the production. It is possible for the ownership of the app to belong to an individual, a partnership, or a limited liability partnership or corporation. The most effective vehicle, in terms of the protection of the developer from financial claims by creditors and other external sources, is likely to be incorporation as a limited liability company.

Is the Idea Protected?

It can be difficult to obtain a patent for a mobile app but it is nevertheless possible to make a search at the Patents Office to make certain that none has been registered that might be infringed by a new product. Additionally, the underlying software behind an app is designated as literary work and, as long as it is accepted as original, it will be protected for the life of the person who was responsible for its creation plus seventy years. Once the software for an app is written the app is automatically protected by copyright and any app that utilises the protected software will breach that copyright. Additionally, it is possible to register a trade mark against the name or logo of a mobile app or to register an app’s logo as a design or copyright it as an artistic production. Breaching any of these protections of an existing app will have serious consequences and the necessary checks and searches should be made.

Protecting the Idea

The conventional route for ascertaining whether a mobile app and/or the software behind it and/or the name, logo and its design are protected is through an application to protect a new app. The Intellectual Property Office, which deals with the registration of patents, designs, trademarks and copyright will carry out a search, prior to registering the protection of a new app, to ensure that there has been no prior registration. Only if this is the case will the new app be afforded protection against future duplication. It is prudent to protect a new app as far as is possible, although the process can be expensive, often involving separate registration in different countries, and may involve complex and costly enforcement procedures.

Post Production Issues

The legal considerations that apply following the production of the app fall into three principal categories, the first of which is the issue of compliance with the conditions imposed by the platform operators of the mobile device for the inclusion of the app in their library.

Compliance with the Operator’s Conditions

Once an app has been approved and endorsed for use on mobile devices it will be subject to legally binding conditions, such as, in the case of Apple devices, Apple’s iOS Developer Program License Agreement or, in the case of Android devices, Google’s Google Play Developer Program Policies. The app must be completely compliant with these conditions, not least as a failure may give rise to legal action and/or the removal of the app from the platform.

The second consideration relates to charging for the downloading and use of the app.

Charges

It is essential that there is absolute clarity surrounding the issue of charging for the use of the app, particularly where it is directed towards the children’s market. If an app has a charge connected to either its original download price or as part of the operation of the app once it is downloaded, such as the purchase of in-game content, rewards, bonuses and other accessories, this should be made clear from the outset. The disclosure should be placed prominently and in an easily readable form to ensure that users of the app cannot later claim to have been taken by surprise when they are charged for downloading or using it. This is all the more relevant when it comes to apps that are targeted at children. Although, in most cases, the app will be downloaded by a parent, they may not be savvy to the issue of in-game charges. Particularly where the app itself is free, the potential for in-game charging should be displayed prominently so that future complaints about unauthorised charges being incurred by children will be avoided.

Finally, we consider the vital issues of date protection and privacy.

Data protection and Privacy

There has been much controversy in recent months regarding the collection, maintenance and use of detailed personal data by various online platforms and this issue is equally relevant when it comes to an app. From a purely data protection point of view, an app is subject to identical guidelines as websites and other online businesses. App developers should ask themselves whether their app collects data such as the name, contact details, location, unique I.D. or other information on the users, whether there is a compelling business reason for collecting the data and whether the data is to be retained and/or shared with third parties. If the answer to any of these questions is in the affirmative, the developer of a mobile app must ensure compliance with the relevant data protection laws and produce a clear and comprehensible privacy policy that can be accessed and read prior to download. Critically, if the app is to be used on a multi-country basis, it will need to comply with the data protection laws of all of the countries in which it is downloaded and used. For instance, in the USA, if the target market of an app includes children, the Children’s Online Privacy Protection Act determines the information that the app can collect about children who are aged below thirteen.

Summary

The legal issues identified above by no means constitute an exhaustive list of those matters that may affect the development and use of a mobile app. As the use of mobile apps becomes even more widespread the law is likely to continue to develop and provide greater clarity about exactly how developers might protect themselves and the users of their app in the legal context. As matters, presently stand, if a developer is in any doubt about taking any measures over and above those set out in this article, a visit to a lawyer who has expertise in intellectual property and/or internet software development and use may help to set the mind at ease.