The Traps with Apps
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By Ali Edwards and Mandy van den Elshout
The smartphone world has gone mad for Apps. So how do you transform your genius ideas into Apps that are protected and that do not infringe other people's copyright?
Protecting your App
Copyright "protection" of ideas
Copyright does not protect ideas themselves but protects the way you express an idea. For example, my idea for an App that gives you the history and images of where you are located in the world could be expressed a myriad of ways. Whilst the idea itself is not protected, the way you express the idea and the direct results of your skill and labour in creating content, the look and feel of it etc. may be protected by copyright.
By putting your App idea into "material" form, the Copyright Act 1968 (Cth) ("Copyright Act") gives a copyright owner automatic protection to defend the use, download, copying, publishing etc of the App without permission. So, by saving your code to disc, as a file, documenting it in an email or writing your idea in full detail on a piece of paper (with your name, date and © symbol), you have put it into "material" form. Be aware though that ownership may change if you have created the App as part of your employment duties or have contractually altered the general position that the author is the copyright owner. See Arts Law's information sheet Copyright for more information on copyright ownership.
Trademarking your App
While copyright doesn't protect names and titles, you need to strike the right balance between trademark and marketing rights once you have the right name for your App. A trademark identifies your goods and their "distinctiveness". For example the Triple J Drum Logo is automatically associated with the ABC's youth radio station. A registered trademark will afford you the protection of your mark and your reputation by allowing you to take legal action should someone use your trademark to promote their own products. Arts Law's information Trade marks provides you more information on trademarks and how to register your trademark.
Keeping it quiet
If you pitch your idea to someone or discuss it in length, you may need to tell them that your discussions are "in confidence" and the information is "confidential". By doing so, you may have a legal right of action, such as breach of confidence, should anyone race off and create their own App based on your idea. This protects the relationship of confidence not the information imparted, so you'll need to make it clear that the information disclosed in your discussions is confidential.
You might also request a confidentiality agreement or Non-Disclosure Agreement ("NDA"). A NDA is a legally binding document that will ensure your information, your idea or your intellectual property is protected from disclosure or use by the other party to the NDA. Arts Law's information sheet Protecting your ideas includes a sample NDA (or Confidentiality Deed) It might also be prudent to specify that what you are telling them is confidential and not to be published, tweeted, "facebooked" or whatever to anyone! The use of a NDA and other express restrictions as to the disclosure of information that you qualify as confidential will enable you to take action for breach of contract and/ or a breach of confidence if the other party discloses or uses your confidential information. It may, however, be too late to close the gap by that stage!
App developers are accustomed to signing NDA's and most should not have a problem signing one prior to discussions about your idea. Becoming familiar with a NDA also lets developers know that you are serious about progressing your App idea as well as protecting yourself.
Creating & using content
App software is protected as a "literary" work under the Copyright Act. Like all author based "works" (i.e. artistic, literary, dramatic and musical works) copyright protection, and the exclusive rights granted, is given to the copyright owner for a specified term (70 years from date of death of the Author) so until this term expires, the material will be protected against unauthorised use, such as copying.
Should you be envisaging world domination, be mindful that different territories throughout the world may have different copyright protection requirements, different terms of expiry for copyright material that you will need to satisfy in order to both protect your copyright and not breach copyright yourself internationally (iTunes, for example, is geo-blocked to specific territorial/ regional availability e.g. iTune.com.au).
Anything you create specifically for the App is therefore protected by the Copyright Act if it is a "work" or subject matter other than works (e.g. sound recordings, cinematograph film). Using other people's works or footage in your App is likely to require their permission unless you can rely on provisions of the Copyright Act, such as an appropriate fair dealing defence, for your use. You might need to get some legal assistance if you hope to rely on such provisions as they can be tricky and "grey" areas.
Sourcing images from the internet
Images are everywhere online and very easily copied. To do so, however, could be a breach of copyright unless the creator has explicitly granted you the right to do so via a direct licence, under a Creative Commons ("CC") licence, through an image library or if the image is out of copyright (i.e. in the public domain).
Licensing directly with the copyright owner, using copyright material licensed under a Creative Commons protocol or sourcing images from an image library, will usually come with a set of terms and conditions which you will need to comply with. If you fail to do so you will potentially be violating your contractual obligations, so it's a good idea to read the licences thoroughly – and get assistance if you don't understand anything! And while court action may be unlikely, fines and penalties for using an image without permission could easily break the App budget.
Neil Walters recommends looking at the Wikipedia Commons where you browse for the image you want after you read the "permissions". The site "CopyLeft", which is a word play on "copyright", may also give you some joy. "Flickr" is a site that allows people to upload their own photos and flag them as "copyleft" ; "all rights reserved" or "some rights reserved" (i.e. licensed under CC). Don't forget that most Creative Commons licences at minimum require attribution. The ABC's Pool website also has a combination of ABC owned images and user generated images available under Creative Commons licences.
Another option is to make your own images. What images do you require? Can you take them? Trying to get a shot of the Great Wall of China may be expensive though if you have to travel there! User generated content (UGC) is also becoming more and more widely considered.
When taking your own images, be aware also of the possible layers of copyright works within an image. Take the image below – the photograph itself is protected by the Copyright Act as an artwork but there is another artwork captured in the image. The sculpture 'Copyright' by David Brown was part of the temporary sculpture exhibition in Sydney, 'Sculpture by the Sea', where this photo was taken. Sculptures like this one are protected as artworks under the Copyright Act but there is an exclusion (s.65), which allows photographs to be taken of them, without permission, if they are "permanent" in public places. The taking, and the communication, of this image may therefore require the permission of the Sculptor, unless there is an appropriate fair dealing defence for your use.
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The hidden depths of Copyright
Using music
Both the notes and melodies of a composition as written by the composer(s) and the sound recording of an artist performing the song recorded by a record company will be protected independently against unauthorised use. This means that if you wish to use a Lady Gaga track in your App, you will potentially need permission from the music publisher that represents the song's composer(s), the record company that made the recording and perhaps also Lady Gaga, as the performer. This may be very expensive to do, as each "owner" is likely to want some payment in exchange for their permission, for example as a percentage of the net receipts from each download/ sale of your App.
If you decide that you will create your own composition and perform it yourself or get your very talented friends to do so, maybe get them to sign a performer release form that clearly states that they assign any and all copyright in the recording made of the performance to you. Performer releases are available from Arts Law. As the copyright owner of the composition, the maker of the recording and the assignee of the performance, you will have no rights issues in using your own music in your App.
If you want to include third party owned copyright material in your App, fees will vary depending on who owns it and what it is. You may have to pay an up-front total one off fee ($00–000's based on sales forecasts and other business factors) for a specific term and territory or payment of a percentage of net Receipts per download (plus minimum flag-fall). Licensing managers at both record companies and music publishers should be your first contact for permission to use sound recordings and / or compositions.
Including footage
In addition to dealing with film libraries such as ABC Library Sales, Corbis Motion, Absolutely Wild Visuals, Thought Equity Motion etc., where you can source and obtain a license for the use of footage in your App, you might also consider using footage made available under Creative Commons licences.
Attributing authors
Moral rights are another issue that may arise in respect of the right of authors and producer/directors in film, to be specifically attributed, not be falsely attributed and not to have their work treated in a derogatory manner. See Arts Law's information sheet Moral rights for more information on this issue. For example, commentaries included in the App that would prejudice the author's honour or reputation the author, may have a right of integrity issue. Importantly, the right of integrity of authorship in film only came into effect in Australia on 21 December 2000, so there is no such right existing in respect of films made before that date.
Putting the App into Apple
For those wanting to develop their own App, two books that are often referred to are iPhone App Development: The Missing Manual and iPhone and iPad Apps for Absolute Beginners. These are basic/beginners iPhone app development books which can guide you through the process. Guidance can also be found here and here.
If you sign-up as an official developer for Apple or Google, its recommended that you read their Developer Agreements thoroughly, or get legal assistance to do so, as you may have concerns about the terms: These terms can grant exclusive rights to sell the App (no other formats e.g. android aka "Google Play" can be made available), gags developers from making public statements about the App, enables revocation and disabling of the App without notice and sets the maximum level of damages to be paid to the developer at $50, no matter what legal rights have been infringed. It may be the case of course that given the might of Apple and Google you are unable to negotiate amendments to these agreements but it is then better to know what is at stake and the risks you face than not. You should also be aware that Google now requires use of an in-house payment service called Google Wallet rather than PayPal, Zong and Boku etc. Apple has always required an in-App purchase to be used.
As an alternative, you might hire a professional developer to write the software for you, or hire a company to do so. These may be expensive (with upfront fees to be paid) but will provide the services of someone with technical know-how. If you engage someone, you should enter into a basic App development contract to ensure that any intellectual property remains yours and that the developer does not take any kind of licence back that limits your rights.
In the event of legal action being taken for breach of copyright, Apple and Google will usually claim no responsibility and say that you, the creator of the App, are responsible for all legal action under the Developer Agreement. This was held in a recent settlement by Jigsaw Entertainment v Apple where a 16 year old had to reimburse Jigsaw Entertainment the thousands of dollars he had made from the Chopper App. Apple also had to pay back the funds it had received from sales of the App.
Ali Edwards is a Senior Rights Advisor at the ABC. Mandy van den Elshout is a Senior Lawyer, ABC Legal & Business Affairs