The Apple Store launched in July 2008 and made available to iOS users some 800 applications ("Apps") to download. As of 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 over 2.8 million on its system. This is an indication of just how quickly the App industry has flourished in the past 9 years.1
The creation and use of Apps have become increasingly popular owing to our 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, shopping to socialising – whatever you require is out there at the tap of a button. Along 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, intellectual property considerations need to be taken into account. For an App to bring value, it needs to add to, and not detract from, a customer's experience so as 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 your App – copyright protects the originality and creativity behind the App; patents protect the invention behind the App; and trade marks 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 Berne Convention3.
App's qualify for copyright protection in several respects, namely:
- as a computer program (as defined in the Copyright Act) namely the software code by which the functionality of the App is technically carried out (typically in the form of source code); and
- additionally, as artistic and / or literary works, where the unique visual layout (look-and-feel) of the App is concerned.
Copyright protection does not, however, 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 Act4 . 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 our law is similar to European law, the specific App in question may well be patentable, provided that it adheres to the above requirements.
A trade mark 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 trade mark is a badge of origin that guarantees the identity of the product to the consumer, and enables the consumer 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 to be marketable. Over time, customers come to associate a unique brand name and logo with a given Apps 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 it provides.
Certain commercial legislation such as the Electronic Communications and Transactions Act ("ECTA")7 and the Protection of Personal Information Act ("POPI")8 need to be taken into consideration when creating and operating an App.
Furthermore, in light of POPI, if an App processes personal information, for example using cookies to access a user's geographical location, informed consent must be obtained from the user prior to using the personal information. Lastly, users must first opt in to receive marketing information from the App before an App is allowed to send the user such marketing information.
The functionality and purpose of Apps are constantly improving and evolving. Apps can either form part of a business, or be the entire business. Therefore, one needs to ask the question: "what exactly do I want to protect?" and then, with the assistance of an intellectual property specialist, appropriate steps can be taken to devise an intellectual property strategy that best protects the business in question.
1 https://www.statista.com/statistics/276623/number-of-apps-available-in-leading-app-stores/ Accessed on 17 November 2017.
2 Copyright Act, 98 of 1978.
3 The Berne Convention for the Protection of Literary and Artistic Works of 1886.
4 Section 25(2) of the Patents Act, 57 of 1978.
5 Section 2 of the Trade Marks Act 194 of 1993 .
6 Glaxo Group v Dowelhurst Ltd (No 2)  FSR 529 (ChD ).
7 25 of 2002.
8 4 of 2013.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.