The needed importance of identifying the contracts that are essential in the development of mobile apps includes:
A mobile app is software and the contents of it such as texts, graphic, music and data that includes personal data of individuals e.g., Names, addresses, financial details etc. An app has certain elements i.e., Developer code, new code, third party code and an open source.
Copyright rights are most relevant to software. Copyright protects creative works such as books, movies, pictures, software. The rights granted include the right to reproduce the software in making copies, the right to create derivative works, modifications and the right to distribute or make the work available to the public.
The lifecycle of an app involves:
Data protection is relevant and impactful in every process of the development of apps. Non- recognition of data protection requirements may result in a significant impact on the brand, redesign costs for the app, fines where data is misused, and brand damage generally.
It is important to identify and avoid the pitfalls involved. Such as
Learning from one’s own experience is important. Doing it right the first time can avoid time wastage, redesign time and costs, litigations and dispute settlement and reputational damage. The key contracts in software development and setting up an app involve:
Out of all these, it is important to ensure license compatibility and also the placement of notices alongside code or documentation to give credit to the authority. Examples of notices include copyright notice, licence notice, attribution notice, modification notices etc.
IP rights are generally territorial and in Kenya IP is registered and regulated by The Kenya Copyright Board and the Kenya Industrial Property Institute in Nairobi. An overview of Kenyan IP laws and specific formalities, Contract laws,
The disputes concerning software development and IP in Kenya include several remedies where a breach of contract is evident such as injunctions, specific performance, damages (either compensatory or account for-profits), declaratory relief, interest, and costs.
ADR mechanisms are advisable for dispute resolution.
The case involved copyright infringement and the breach of contract of “cubes solutions software”
There was no software development agreement between the parties and when the relationship broke down, the defendant refused the plaintiff access to its servers. The plaintiff went to court to seek an injunction to order the defendant to release its servers.
Some of the documents that were considered by the court since there was no software development contract signed nor executed were the memorandum of association, the mutual confidentiality and NDA agreement, and the draft consultancy services agreement.
This case brought about why it is important to have contracts when parties are getting into the development of mobile apps due to software development and ownership. The court in this case had the regard for the draft contract even where it had not been executed or signed by the parties.
The lesson learnt from such a case is that it is important to maintain proper documentation and agreements between parties in place when it comes to developing of apps and software.
The courts in Kenya would be able to consider and adjudication software disputes that relate to Warranties, Indemnities and Standard clauses
The legal framework in Kenya for consumer protection is:
In the development of software and mobile apps, it is important to plan for success and avoid traps. It is very important for an app developer to know their app, to look into the various aspects in the app that are protectable by various IP and to put the relevant contracts in place. The importance of contracts and compliance is addressing the risks in NDAs, IP ownership issues in development agreements, data protection assessment among many other purposes.