With the dramatic rise in the popularity of mobile technology and the widespread use of smart phones, tablet computers and other mobile devices, there is remarkable development in the design, development and production of applications for these mobile devices.
These applications, known more popularly as “apps” are available for use in all domains, from banking to shopping, online news and airline check-in. These applications provide companies with unique capabilities of using mobile technology to find new ways to reach existing and new customers, as well as to facilitate internal operations of their company.
Meanwhile these capabilities also raise legal considerations, including those relating to:
Business Structure/Intellectual Property (IP) Rights
Data Protection and Privacy
In this blog, we shall look at some of the legal considerations that may arise when developing a new mobile app and those that the companies should consider from the beginning and throughout mobile app development
1. Business Structure/Intellectual Property Rights
Before embarking on the development of the proposed app, it is essential to understand what is meant by an Intellectual property.
Intellectual property (“IP”) refers to all the elements that are used during the process of developing and promoting your app. These include the app designs, graphics, app name, app logo, source code, etc.
You will need to be aware of some key factors when considering the Intellectual Property Rights:
Protecting your app’s intellectual properties from your competitors
Professional mobile app developing companies cannot afford to ignore the importance of protecting the intellectual rights of the applications they create. Hence, it is important to be aware of certain tips regarding the protection of intellectual properties.
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. This is to ensure that there has been no prior registration to protect the app against any future duplication.
If the app is not patented, the intellectual rights on them can be protected via company-wide trade secret agreements which implicitly state that all types of unauthorized public disclosures about the app are banned except the promotional pitches issued by the company.
The app can get copyrighted to prevent your app ideas from getting blatantly copied by rival mobile app companies. Also, it is important to get the app code registered to prevent the app designs/features from getting duplicated.
Ensuring that you do not infringe the IP of a third party
It is difficult to know whether your app might infringe the rights of a third party, but you can take steps to avoid infringement. You can minimize the risk of infringing third-party copyrights or misappropriating third-party trade secrets by making your app an original work and ensuring that the developers have not borrowed the content or code from any other app.
You can reduce Intellectual Property infringement risk by conducting a trademark search that looks for prior users of similar marks, and you can conduct a patent search to determine if your app infringes an existing or pending patent.
2. Development Agreement
When an app is developed in-house, you should have agreements in place with your developers so that your business owns the resulting intellectual property rights. When an app is developed through a partnership, each company owns the IPR only over the piece developed by it, in the absence of an agreement to the contrary.
If each party involved in the development wants the ability to further exploit the app for commercial and non-commercial purposes, then the parties should execute an agreement of joint ownership of the app wherein which each party will be required to account to the other of the financial benefit derived from its use of the app.
3. Data Protection and Privacy
App users place an implicit trust on any app that they install on their mobile devices and it is essential their trust is not violated in any form. Therefore, data protection and privacy is a fundamental legal consideration when developing a mobile app, any failure of which can have devastation consequences on the business.
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, there are very strict privacy requirements under the Children’s Online Privacy Protection Act
(COPPA) which specifically deals with apps that are likely to attract children under the age of 13 as users.
Any app generally raises the same advertising law considerations like those for websites, e-mail or other online and networked communications. For example, all communications sent through or in connection with a mobile app must comply with:
The Telephone Consumer Protection Act (TCPA) and related Federal Communications Commission rules. The TCPA notably provides for private causes of action and high statutory penalties for violations.
The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) rules regulate certain commercial email and text message communications to consumers.
Additionally, many state laws exist that regulate commercial text messages. The Federal Trade Commission's Truth-in-Advertising laws additionally require that all information about the app be truthful and complete, and that any objective statements about the app be backed with evidence. Other state-specific laws, and the laws of foreign countries, can apply.
The company also must consider relevant advertising and promotion laws in connection with:
Serving third-party advertising through or in connection with the app.
Advertising or promoting the app.
Conducting or promoting contests in or through the app.
Once you’ve built your app you need to choose the app store(s) and mobile platform provider that will distribute your app. Few factors need to be considered when making a decision about the app distribution, such as, which platform providers are more prescriptive than others, which would reach more audience, etc.
The Apple App Store, Google Play, and The Microsoft Windows Phone Marketplace are the largest app stores and are also platform providers. However, platform providers/app stores vary in their requirements and often require you to follow particular compliance policies.
The agreements offered by app stores and platform providers (e.g., Apple's iOS Developer Program License Agreement or Google's Google Play Developer Program Policies for Android devices) often seek to incorporate various additional usage or compliance policies that may have consequences to the development and distribution of the app and they also may specify particular terms that must be included in an end user agreement with users of an app.
An awareness of all these key considerations would be essential, but there is a lot of detail involved in each, and many other issues that may need to be considered in order to ensure your app’s longevity and success. Getting a detailed understanding of these key legal aspects will make sure that you have a relatively hassle-free path to mobile app success
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