The Apple Store was launched in July 2008 and made approximately 800 applications ('apps') available for download by iOS users. By March 2017 this number had increased to 2.2 million. Surprisingly, the Apple Store is second to Google Play when it comes to the number of apps available for download, with the latter having more than 2.8 million on its system. This is an indication of just how quickly the app industry has flourished in the past nine years.(1)
The creation and use of apps have become increasingly popular owing to users' desire to stay in touch with rapidly developing technology-driven content and services dissemination. Apps have been created to satisfy just about any need, from gaming to fitness, transport to live updates and shopping to socialising – whatever you require is out there at the tap of a button. With this growing demand comes the need to protect unique and inventive business ideas that have been realised in a material form.
However, before releasing an app, IP considerations must be taken into account. For an app to bring value, it must add to – and not detract from – a customer's experience, in order to encourage the notional customer to use the feature as much as possible. This, coupled with its brand name and logo, is the creative or innovative concept that needs protection.
There are three fields within intellectual property that come into play when considering how best to protect an app:
- copyright, which protects the originality and creativity behind the app;
- patents, which protect the invention behind the app; and
- trademarks, which protect the name, logo or other visual identifiers of an app.
In South Africa, it is not possible to register copyright. Protection arises automatically (under the Copyright Act)(2) in respect of specified categories of work that have been reduced to material form, if the work in question is the product of original skill and labour and its author or owner is a national of a country party to the Bern Convention.(3)
Apps qualify for copyright protection in the following respects:
- As a computer program (as defined in the Copyright Act) – namely, the software code by which the app's functionality is technically carried out (typically in the form of source code); and
- As artistic or literary works, where the unique visual layout (look and feel) of the app is concerned.
However, copyright protection does not extend to the concept or purpose of the app, but is confined to the material form in which it has been expressed. To the extent, however, that the purpose and concept of an app constitutes an invention under the patent legislation, a patent may be obtainable.
For an invention to be patentable in South Africa, it must:
- be new;
- involve an inventive step;
- be capable of being used or applied in trade, industry or agriculture; and
- not form part of the exceptions listed by the Patents Act.(4)
One of the exceptions specified under the Patents Act is a "program for a computer". The act goes further by stating that the specified exceptions are unpatentable "only to the extent to which a patent or an application for a patent relates to that thing as such".
South Africa does not have precedent when it comes to deciding on the patentability of computer-implemented inventions. However, the European Patent Convention appears to suggest that computer-implemented inventions are patentable only if they:
- have a technical character;
- are new;
- involve an inventive technical contribution to the current state of technology; and
- are capable of use or application in trade, industry or agriculture.
Considering the fact that South African law is similar to European law, the specific app in question may well be patentable – provided that it adheres to the above requirements.
A trademark is a sign capable of graphic representation, but in order to be registrable it must have the ability to distinguish one trader's goods or services from the goods or services of another trader.
A trademark is a badge of origin that guarantees the identity of the product to the consumer and enables them to distinguish the goods or services, without confusion, from those of another origin.
An innovative or inventive brand name and logo is usually the first step required to render an otherwise technically useful app marketable. Over time, customers come to associate a unique brand name and logo with a given app's utility, and this reputation will become an invaluable asset which an owner will need to protect from potential infringers on all fronts. A useful example of this is Twitter and the association of its well known blue bird logo with the word 'Twitter' and the services that it provides.
Further, in light of the Protection of Personal Information Act, if an app processes personal information (eg, using cookies to access a user's geographical location), informed consent must be obtained from the user before their personal information can be used. Last, a user must opt in to receive marketing information from the app before such information can be sent.
The functionality and purpose of apps are constantly improving and evolving. An app can form part of a business or be a business in itself. Therefore, one must ask the question: "what exactly do I want to protect?" and then, with the assistance of an IP specialist, devise an IP strategy that best protects the business in question.
(2) Copyright Act, 98 of 1978.
(3) The Bern Convention for the Protection of Literary and Artistic Works 1886.
(4) Section 25(2) of the Patents Act 57 of 1978.
(5) 25 of 2002.
(6) 4 of 2013.
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