Recently ranked the best G20 country for cross-border trade using the Internet on the basis of a combination of factors including a high smartphone penetration rate and Internet affordability, Australia can be an attractive market for app developers looking to commercialise their apps across different countries in the world. What specific issues relating to the Australian legal environment do app developers need to be aware of?
The first relates to options for IP protection. Apps can be subject to patent protection in Australia and there are two classes of patents available: a standard patent, which provides protection for 20 years or an innovation patent, which provides protection for 8 years.
An innovation patent may be a more suitable alternative to a standard patent for apps, where a 20-year term of protection may be excessive. Advantages include speedier granting, as no substantive examination is required (although examination must still be conducted before the patent is enforced); cheaper official filing fees and a lower threshold to qualify for an innovation patent. i.e. in addition to novelty, the applicant need only show that the invention involves an “innovative step” rather than an “inventive step”.
Patent applicants may also consider filing a provisional patent application as a first step. This gives the applicant an opportunity to consider, for 12 months, whether or not it should proceed to file a complete standard patent or an innovation patent application. If a patent were granted, the applicant would be able to rely on the filing date of the provisional application as the priority date of the patent.
Design elements of apps can also be the subject of registered designs in Australia. These protect the visual appearance of products, where the design is new and distinctive when compared with the existing prior art base. Design registration is intended to protect designs that have an industrial or commercial use. A registered design gives you, the owner, exclusive rights to commercially use it, licence or sell it. The term of protection is 10 years.
Privacy is a particularly pertinent legal issue for apps, as more and more personal information about app users, across more and more fields, is collected everyday through apps.
The main legislation applicable is the Privacy Act 1988 (Cth) (the Privacy Act), which contains thirteen Australian Privacy Principles, or APPs, regulating how private individuals or organisations and government agencies should deal with personal information.
Personal information is defined as information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not. Examples include, app users’ contact lists, voiceprint and facial recognition biometrics and geolocation data.
Of particular note to smaller enterprises, The Privacy Act will not apply to a business whose annual turnover is A$3 million or less, except for certain exclusions relating to the turnover of related corporate bodies and certain prescribed activities such as health services. The privacy act does not apply also to companies who do not have an ‘Australia link’ (such as incorporation and business activity within Australia or personal information collected or held in Australia.)
Where The Privacy Act does apply, there are legal obligations relevant to all stages of dealings with personal information, including documentation, collection, Use or Disclosure, Storage and Destruction.
While breaches of the Privacy Act or the Spam Act would not constitute criminal offences, they may attract hefty statutory penalties of up to A$340,000 for individuals and A$1.7 million for companies. As such app developers within Australia would do well to familiarize themselves with the Privacy Act and establish their own status accordingly.
In a second article, we will cover other implications for apps developers relating to Australia’s strong consumer protection laws.
Tracy Lu, Associate, Allens See Profile