Article: Tuesday, 30 March 2021
Apps are now deeply embedded in daily life; the average person has 40 apps installed on their smartphone. Yet app developers can still have problems deciding how to protect their intellectual property (IP) in the best and most cost-effective way. Researchers with legal expertise have gathered information to guide app developers towards the most efficient and cost-effective protection for their intellectual property; they found more ways to protect IP in apps than you might think.
Dr Helen Gubby of Rotterdam School of Management, Erasmus University (RSM), together with experienced IP attorney Jos Klaus LLM of Leeway, Amsterdam and Dr Kees van Noortwijk, Eramus School of Law, Erasmus University put their research into a set of guidelines.
The economy has become knowledge-dominated and IP has taken on a major role. Now, it’s not unusual for a company’s intellectual assets to be worth far more than its physical assets. And this is why protecting intellectual property is vitally Important to many businesses, whether they are high- or low-tech.
Apps have become important in business, as well as in everyone’s private lives. But from the early days of commercial desktop software, lawyers have struggled to fit software into the traditional IP framework, a framework that was largely developed in a pre-digital age.
There has been critical debate about protecting intellectual property in software in the past, but the focus was not on IP protection for app developers. However, an app is fundamentally different from other software applications – like those for desktop computers – because of the special characteristics of the mobile device on which it runs, so apps are a particular category of software that justify specific attention. The researchers say legal discussions have missed out paying specific attention to IP in apps, and this legal uncertainty affects business.
Producing apps can be a lucrative business, but there can be intense competition. Also users expect frequent and automatic updates for the apps they have installed and this, together with a shorter software cycle for apps, can make it more costly to develop apps for mobile devices than for desktop computers. That means there’s extra pressure to protect the finished product. Yet legal practitioners have observed that even when rival app developers compete for market share, the IP rights are often not taken into account by these developers. Sometimes this can be ascribed to the naivety of app developers because they just don’t know about protecting intellectual property. However, some developers think it is simply not possible to prevent others from copying their apps, either wholly or in part. Others believe that obtaining IP protection is too costly. But is that true?
The researchers wanted to look at the possibilities that IP law offers to app developers, and show them which forms of IP would provide them with the most efficient and cost-effective protection for their apps.
The researchers focused on the four most distinctive aspects of apps, using their experience from legal practice to examine the IP protection possibilities of:
Protecting a patent is less relevant to most app developers because many apps use roughly the same technical functionality. It can also easily take more than 4 years after filing for a patent before it is awarded and in a sector that moves very fast, there is little point investing in a patent for what might be out-dated technology by the time the patent comes through. So the researchers’ focus was on other forms of formal IP protection: copyright, design and trademark.
Copyright is the only option for protecting the intellectual property of source code. However, app developers have to be aware that third parties might carry out updates and other modifications to the source code. It’s also possible that some software components they used to build their app might have been developed by third parties, who in turn may have IP rights on those changes or building blocks. Keeping track of who has the copyright on what can be particularly important for apps developers, given that users expect swift and frequent updates.
The graphical user interface (GUI) can be classified according to more than one form of intellectual property. Copyright and registered or unregistered design rights are practical options, and since the implementation of the Trademark Reform Package in Europe in 2017 there are wider possibilities for trademark registrations too. And although it can be difficult to register a trademark in this context, it could be worthwhile. A trademark, if renewed, has unlimited duration (unlike other forms of formal IP) and could be very advantageous.
Movements and transitions that form the vital components of an app are probably best protected by design rights, but care must be taken when registering to make it clear exactly which movements or transitions are being registered – for example by including animations in the application. As with GUIs, in certain cases trademark protection will offer an alternative form of protection.
Logos, icons and fonts can be protected by several forms of IP: copyright, design and trademark protection are all possibilities, just as they are for GUIs. However, if the feature is too simple to qualify in law as a ‘work’ then it cannot have copyright protection, nor will it get trademark protection if it is not distinctive enough. However, EU design rights explicitly protect typographic typefaces and graphical symbols. Icons are covered by the broad concept of graphical symbols and so will usually get protection.
App developers can achieve a significant level of protection for their app if they know how to use the various forms of IP for each of its components. While it is likely that the GUI as a whole cannot be protected, it’s possible to protect the intellectual property of separate components of the GUI, and this might be enough to ward off infringements by competitors.
Simply registering IP, regardless of the scope of the protection, can in itself act as a deterrent to would-be infringers – this has been seen in legal practice. If app developers make the most of the IP protection that is available, then businesses have enough options to protect the identities they have built up and their digital presence, even in the digital environment.
This research was motivated by the practical issues that have caused business clients to consult IP attorneys, as well as out of academic interest. Business people have experienced problems associated with protecting the apps they have developed. To find out why, and to address some of the common questions about protecting intellectual property in apps, the researchers examined theory and practice – and used the experience of the three specialist researchers.
There are still some grey areas of law for software protection in Europe – for example there is relatively little case law specifically on apps. The researchers wanted to provide business people with guidelines for protecting the intellectual property contained in their apps. And they found that there were more possibilities for protection than might be apparent at first sight. Clearly some forms of protection are less problematic than others, and some are more cost-effective than others.
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