Mobile apps and the legal issues for businesses

The relatively young mobile app is enjoying a meteoric rise in popularity. As companies scramble to develop their own apps, technology and business lawyer Richard Abbott examines some of the legal issues. It is reckoned that within the next four years, more people will connect to the internet via a mobile devices, such as a smart phones or tablets, than via a traditional computer. The ubiquity of mobile devices has made the mobile application, or app, a key tool for business and consumers. The law governing their development and use is in its infancy, but a number of factors should be borne in mind by developers: Intellectual Property The development of an app version of someone else’ work could infringe copyright or other intellectual property rights. For instance, if the development includes aspects of another person’ work (including software) it will be necessary to ensure that a licence is obtained from the owner of the work before a mobile application is developed to prevent infringement of rights such as copyright or trademark. Problems can also arise where two applications are independently developed but are similar in design. Whilst this is not necessarily a breach of law, as protection is afforded to the expression of an idea rather than to an idea itself, it can cause conflict with the owners of other apps as it may be difficult to show that the app had been developed independently. Care should also be taken to ensure that trademarks are not infringed. This could arise, for example, where an application has a name or logo that resembles that of a registered trademark. These are registered, so checks can be made to ensure that a proposed name or logo does not infringe an existing trademark. To make matters worse, due to the cross-border nature of the internet, an app could be developed in one country and infringe the intellectual property law of any country in which it can be downloaded and used. In practice it is impossible to be absolutely sure that infringement does not arise, especially in cases of copyright because, unlike trademarks, copyright is unregistered. However, there are things that can be done to reduce the risk. A developer should never knowingly copy another application. If open source software is used in the app’ development, care must be taken to ensure that any conditions of use are complied with. Similarly, if the app uses third party software, the terms of the relevant licence must be complied with. Data Protection Developers must ensure that apps comply with data protection law which protects the use of personal data of living individuals. This means that there needs to be adequate security to protect the details of app users and to prevent the processing of data e.g. transmission to third parties without the user’ consent. Special consideration will need to be given as to whether personal data can be accessed outside the EEA. If so, it will amount to export of personal data and will be illegal except in situations permitted under UK and European law. Contract Issues Once the application has been accepted for use on a mobile device it will be subject to terms and conditions, such as Apple ‘iPhone Developer Program License Agreement’ and Android’ ‘Market Developer Distribution Agreement.’ These will set out the provisions governing the application, which may include provisions relating to privacy, obligations to support the app and provisions relating to content. Careful consideration will need to be given as to these terms and conditions, so as to ensure that the app is fully compliant. As the app continues to become of increasing importance it will doubtless continue to raise further interesting legal issues.