Looking for some app action? Martin Sloan, associate in the technology, information and outsourcing group at Brodies LLP, provides the lowdown on the practical and legal pitfalls of app development
Since its release in March last year, Apple’s iPad has revolutionised the personal computer market. Interest in developing software applications (apps) for Apple’s mobile operating system iOS (which supports the iPad, the iPhone and iPod) has never been greater.
While it’s tempting to rush into app development in the hope of creating a lucrative business app like ScanBizCards or JotNot, there are a number of legal and practical matters you should consider.
Firstly, if you want an app that is going to promote your business (as opposed to an app that is going to be used by business people) then a mobile-optimised website is arguably far more important and will reach a lot more potential customers than an app that will only be accessible by those who are using Apple devices.
Secondly, while Apple may currently be the media’s darling, you should bear in mind that iOS isn’t the only widely used operating system – indeed, it’s arguably not even the most popular. Google’s Android operating system can be found on a variety of devices and smartphones, including hardware manufactured by Samsung, HTC, Dell and Micromax. In fact, by the time you read this, sales of devices that run Android will probably have eclipsed sales of devices that run iOS. If your aim is to reach the most customers possible therefore, then developing an app for iOS may not be your first option.
With these provisos in mind, let’s take a closer look at some commonsense rules and standards of good practice that should apply to the development of any app software (be it for iOS, Android or any other operating system).
Apple’s rules
In order to sell apps through Apple’s App Store you need to enrol in Apple’s iOS Developer Programme, which involves paying a fee of $99 (approx £61) per year, agreeing to Apple’s Developer Programme License Agreement, and using Apple’s Software Development Kit.
Apps developed using the company’s software development kit may only be publicly distributed through the App Store, and every app must be reviewed and approved by Apple for compliance.
If an organisation wishes to develop a proprietary app for distribution and use it only within its own organisation (and not through the public App Store), then it must enrol in a separate developer programme (the iOS Enterprise Developer Programme).
All apps need to comply with Apple’s Human Interface Guidelines and its guidelines for using Apple trade marks and copyrights. If an app makes use of location data then certain extra notices must be provided to users, and if an app allows the user to download any additional paid-for content, then it needs to comply with Apple’s strict rules on content-based apps.
Apple can reject an app for any reason, even if it meets all of the requirements set out in the App Store Review Guidelines. In contrast, Google’s Android Market does not have the same rigorous
vetting process.
Best practice rules
Anybody interested in creating an app – be it for iOS, Android, or any other operating system – should keep in mind commonsense rules and standards of good practice that apply to the development of any software.
• Decide what your app will do. This may sound obvious, but there are a large number of apps that do not offer anything that is not already available. The most successful apps are those that are simple, or do something unique.
• Establish ownership. Using a third-party developer? Unless you have a written agreement in place that expressly transfers ownership of the intellectual property rights in the app (mainly copyright) then those rights will continue to be owned by the third party. If the app is successful then it might be expensive to sort this out after the event. Even worse, the developer might launch its own app using the same code.
As a related exercise you should also ensure that any third-party software that your app utilises is licensed to you on sufficiently broad terms. For example, a third-party licence that applies only for use in an iPhone app may prevent you from incorporating that third-party software in an iPad version. If your app provides access to content, then consider whether you can get the exclusive rights to that content so that no one else can sell a competing version.
• Check international trade marks. Remember that most app store markets operate globally. This means that you need to check that any brands or trade marks associated with your app do not infringe any third-party rights in other countries.
If branding is going to be key to your app then you may wish to consider instructing a trade mark agent to carry out a trade mark search. You may also wish to apply for registered trade mark protection.
• Plan your budget. Bear in mind that Apple will take a 30 per cent cut of sales (not profit) for apps sold through the App Store, a margin that may impact upon your proposed revenue model.
There is also current uncertainty regarding in-app purchases. If Apple makes them mandatory, then Apple will have a claim to 30 per cent of sales from anything you sell via your app (for example, subscriptions to content). In contrast, Google currently takes only a 10 per cent cut of in-app purchases on the Android platform.
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