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ISSUE
36
By. Paul Kaindo
T
he global mobile app market has
experienced exponential evolution
over the last few years. According
to World Intellectual Property Organisation
(WIPO), currently there are over three mil-
lion mobile apps worldwide. In 2015 the
mobile app industry alone generated over
$41.1 billion (Sh4.1trillion) in gross annual
revenue. They predict that by the end of
2020 the gross annual revenue may top
$189 billion (Sh18.9 trillion). According to
Facebook, 5.3 million of their 5.5 million
users in Kenya access Facebook via mobile
devices. In 2017 the number of mobile apps
in Swahili had increased from 5,000 in 2014
to almost 30,000.
Mobile apps have become signicant in re-
sponding to the Covid-19 pandemic by provid-
ing information, self-assessment clues, remote
healthcare, contact tracing and audio visual
meetings. These trends make a convincing case
that mobile apps are viable social and business
tools across the globe.
With the advent of 5G mobile network and
performance increase in smartphones’ process-
ing power, the mobile app market will continue
to grow signicantly. As this happens, Intellec-
tual Property Rights (IPRs) in mobile apps will
increasingly become vital.
Mobile apps may enjoy the protection of dif-
ferent IPRs engaged in protection of various as-
pects of the apps. The availability of each pro-
tection depends on specic elements of the app
and on the jurisdiction involved. Arguably, pro-
tection could be available through trademark,
Patent, design, trade secrets or copyright. Some
IPRs exist automatically while others only ex-
ist upon registration. Copyright for example
is available without any registration. As such
there is minimal cost associated with this pro-
tection. Taking advantage of multiple IP protec-
tion where possible could prove crucial when
warding off imitative competition. It gives one
the exibility to fall back on one IPR when an-
other is successfully challenged.
Computer programs are the backbone of
mobile apps. The primary form of protection
for computer programs is copyright law. Com-
puter programs, represented either in source
code or object code formats, should be protect-
ed as literary work within the meaning of the
Berne Convention.
It may look unusual that Copyright plays a
part in protecting a seemingly functional and
technical item like a mobile application because
it was initially intended to protect conventional
works such as books, musical compositions,
paintings and sculptures.
The Kenyan Copyright Act recognises a
computer program as a literary work eligible
for copyright as long as it is original. A com-
puter programmer is an author for purposes of
copyright.
Notwithstanding the fact that copyright law
protects functional works such as maps, plans
and diagrams, it is not the functional charac-
ter of the computer program that is the subject
matter for copyright protection. Computer
programs are neither designed nor intended to
communicate with humans. While a book is
primarily intended to be read and comprehend-
ed by humans and either gratify, inform or edu-
cate them, a computer program is intended to
interact and instruct a machine. It is this peculi-
arity that makes computer programs stand out
as protectable subject matter under copyright.
This contributes to the challenging aspects that
become apparent when attempting to ascertain
the boundaries of such protection.
The subject matter of copyright protection
is diverse and ranges from items such as com-
puter code to graphics. The screen displays gen-
erated by mobile apps is copyright protected,
independently from any protection granted to
the underlying program. The protection arises
automatically once the program is xed without
any formality prerequisite.
The ‘idea expression dichotomy’ concept
may limit the scope of protection granted to
mobile apps under copyright. This concept pro-
vides that copyright does not protect ideas, but
only the expression of those ideas. If one repro-
duces an idea in the app, it is not infringement
under copyright law. The rationale for this rule
is to avoid monopoly of ideas as authors often
use existing ideas when generating new works.
Once copyright eligibility is established,
it is necessary to examine whether the right
holder enjoys exclusive rights. Every copyright
system provides a number of exclusive rights
enjoyed by the author of a work to the exclu-
sion of others. It is presumed to be copyright
infringement when someone does any of the
acts that fall within the ambit of one or more of
the exclusive rights without authorisation from
the rights holder. Amongst the exclusive rights
include the right of reproduction (copying), the
right of adaptation (making derivative works)
and the right of making available to the public
(distribution).
Under the Copyright Act, a person in lawful
possession of a computer program may, with-
out authorisation, make copies of the program
for the purpose of correcting errors; making
a back-up copy; making copies for testing a
program to determine its suitability for his/her
use; or for any purpose that is not prohibited
under any license or agreement. He is also not
required to get the right holders authorisation
to decompile the program or to convert it into
a version expressed in different programming
language, code or notation for purposes of ob-
taining information necessary to make the pro-
gram compatible with other programs.
Initial copyright ownership of a computer
program vests in the author. An author is the
person by whom the arrangements necessary
for the creation of the program were undertak-
en. However, where a work is commissioned
by a person who is not the authors employer
IP Protection in Mobile
Applications and Computer Software
4
Copyright News
under a contract of service; or is made in the
course of the authors employment under a
contract of service, the copyright is deemed to
be transferred to the person who commissioned
the work or the authors employer, subject to
any agreement between the parties excluding
or limiting the transfer.
A copyright’s term of protection is the dura-
tion of the life of the author plus 50 years.
Patent law on the other hand protects a
product, process, or a product derived from a
specic process. Computer programs alone do
not conform to such products or processes and
patent law may not be appropriate for protect-
ing computer programs. A programmer writes a
computer program to execute certain processes.
Where available, patents may be used to protect
the associated functionality, which may encom-
pass relevant computer program to the extent
that it enables such functionality.
Patent rights are different from copyright
in that they do not arise automatically and an
application process which typically requires a
fair amount of resource and time has to be un-
dertaken.
The term of patent protection in Kenya is 20
years. This term is not renewable and once the
term has expired, the invention is no longer pro-
tected and can be exploited by anyone.
Trade secrets protect information that has
commercial value by virtue of its secrecy. This
protected information may be technical but could
also relate to important business details such as
business plans or nancial projections. They do
not require any formal registration hence attrac-
tive as there is little immediate cost associated
with them. That notwithstanding, costs may arise
from ensuring appropriate measures are in place
to keep the information secret.
In certain situations, trade secrets may be
the preferable form of computer program pro-
tection. They could be used to protect the code,
algorithms and structure of apps. Condential-
ity clauses in employment contracts and non-
disclosure agreements with third parties could
for example ensure that such aspects of an app
remain condential.
Trade secrets could protect aspects of mo-
bile apps that could not be uncovered through
reverse engineering or decompilation, such as
source code and specications or new methods
for delivering content. They could also be very
useful in relation to features that cannot be un-
covered through reverse engineering, such as
new algorithms or data structures.
Some mobile apps are not downloadable at
all but are offered over the internet as a ser-
vice. Since the code for such apps stays out of
reach of competitors, its internal architecture
cannot be accessed through reverse engineer-
ing and decompilation. In such cases, trade se-
crets serve as the main vehicle for protection
against misappropriation.