Copyright protection of apps and software (3 practical tips)

Nowadays, more and more apps are created to solve everyday problems and make people's lives easier. It often happens that insufficient regulations are made regarding the rights that arise in the development of apps and software. One of these rights is copyright. What elements of apps can be copyrighted? And what should you pay attention to with regard to copyright when developing an app? In this blog, Chiara Isert will answer these questions as well as provide practical tips on how to avoid conflicts related to app copyright.

1. Protected elements

If an app's software or design has its own original character and bears the creator's personal stamp, it is a copyrighted work. This protection arises automatically under the Copyright Act. Thus, it is an intellectual creation of the creator who made creative choices to create the work in exactly that way. In the context of copyright protection for apps, there are several components to which copyright protection accrues.

The most obvious is the protection of the source code or object code underlying the app. Of course, the above requirements must be met. In practice, however, this is readily apparent. However, a note must be made here: the protection does not extend to parts that are of a purely technical or functional nature. In addition, just like the design of a store or the layout of a website, the design of apps can also be protected by copyright. Consider the combination of certain colors, fonts and other components of design also called the corporate identity.

2. Who owns copyrights?

Article 1 of the Copyright Act states, "Copyright is the exclusive right of the creator [...]".The creator makes the creative choices and ensures that the work bears his personal stamp. In principle, it should be assumed that the person who actually creates the work - that is, the person who codes the software or creates the design - is the creator. In some cases, however, copyright does not accrue to the person who actually creates the work. If someone else determines how the app is developed, the person who develops the app based on those instructions does not own the copyright. In that case, the copyright accrues to the person who gives the instructions. Furthermore, copyright may belong to the employer to the extent the work is created by an employee.

Principal's copyright?

In practice, it is often assumed that the same would apply in the case of a commissioned work. In the Netherlands, however, there is no client copyright. Therefore, the person who commissions the creation of a particular app or software is not automatically the copyright holder. In addition, conflicts sometimes arise when someone has an idea and someone else implements it. However, ideas are not protected by copyright law. Only when an idea is embodied in a concrete material - in other words, when it has been executed - can you also claim copyright.

3. Practical tips on copyrighting apps and software

To avoid disputes over rights to apps or software, it is important to make proper agreements. Several options exist for recording those agreements.

Option 1: transfer

At the time you commission the software and/or design for the app, it may be convenient to agree in advance that any copyrights that might arise will be transferred to you. Transfer of copyrights requires a written deed. As a result, the person to whom it is transferred is the only one who has the copyrights. Therefore, the creator can then no longer claim these rights.

Option 2: license

With a license, as with assignment, you could ensure that you can (continue to) exercise (part of) the copyright. A license also requires a written deed. Please note that in this case the creator can exercise the rights himself and that the license only gives permission to copy or disclose the work. It may also be the case that others also have a license and thus have the same rights.

Option 3: confidentiality statement

In case you have an idea that you have not yet turned into a "work," you obviously do not want this idea to be used by anyone else. This can be prevented by a non-disclosure agreement. That way, your ideas will stay with you or within your company.

As a result of this article, do you have questions about copyright in apps or software, or do you have other questions about copyright? If so, please contact the attorneys of our ICT, IP and Privacy team or fill out the form below. We will be happy to assist you further.