The market size for application development software is projected to grow exponentially over the next few years, from USD 325 billion in 2023 to over USD 1.13 trillion in 2028. Such growth has been attributed to, among others, low-code and no-code development trends, which involve design and development methods including intuitive drag and drop tools that reduce or remove the need for writing the code. These trends, and application development software in general, invite pertinent copyright considerations for interested parties developing or commissioning the development of such applications. Three principal considerations are outlined below.

The Idea-Expression Dichotomy

In the UAE, software applications are protected under applicable copyright laws. Importantly, copyright only protects the expression of an idea or concept, as opposed to the idea or concept itself. In practice, what this means in relation to software applications and computer programs, is that it is only the literal expression of that application or program (e.g. the source code) that is protected from misappropriation or unauthorized reproduction by third parties. Any additional works in the application, such as any artistic or musical works, are separately protected by copyright.

It is important to add that protection is accorded automatically upon the creation of the software application without the need for additional formalities such as registration (although copyright registration is available in the UAE), provided that the requirements under Federal Law No. 38 of 2021 on Copyright and Neighboring Rights and its implementing regulations are satisfied. Further, copyright protection generally lasts for the life of the author plus an additional 50 years (subject to a few exceptions).

While “ideas” or “concepts” are not proprietary under IP laws, there may be other ways of protecting them, or rather minimizing the risk that they are exploited by third parties. Interested parties that wish to protect an “idea” or “concept” in relation to a software application or computer program, in case of its disclosure, for example while pitching the idea to potential investors or exploring the development of such software, would need to ensure that appropriate confidentiality obligations are in place through non-disclosure agreements. However, contractual obligations would generally only bind the parties to the agreement.

Authorship vs Ownership

Generally, copyright protection is accorded to the creators of works, as the authors of those works. An important exception to this rule (with respect to the author’s economic rights, i.e. the right to license and transfer the rights to the work) exists when works are made in favor of another party. This exception – the “work for hire” rule – is provided for in Article 28 of the UAE copyright law. The “work for hire” rule broadly stipulates that, unless otherwise agreed in writing, all rights to works, which are created in favor of others, belong to the party in whose favor the work was created. The effect of this is that all economic rights to works created by employees (within the course of, and in relation to, employment and using employer resources), as well as service providers or contractors, belong to the employer or client respectively.

The best practice would be to conclude written agreements, governing the relationship between employer/client and employee/contractor vis-à-vis a software application, clearly delineating rights. If the intention is for the author to retain the economic rights to the software application developed in the course of an employment or contracting relationship, which would otherwise be captured under the “work for hire” rule, it is advisable to have appropriate written language to that effect and to expressly displace Article 28 of the copyright law.

In addition to this, where an arrangement anticipates the creation of more than one software application or computer program, or continuing updates or modifications thereof, it is especially important to ensure a positive obligation to assign, and do everything necessary to assign, the rights to works created by the assignor to the author or to the party commissioning the work. This is because the law prohibits the disposition or assignment of more than 10 future works. A prudent approach would be to ensure this positive obligation is always included if anything as a catch-all clause.

It is further worthwhile noting that, while the author’s economic rights vis-à-vis software applications and computer programs can be disposed of, the author’s moral rights – namely, the right of first publication and the right of attribution and integrity over the authored works – cannot be assigned or waived.

Derivative Works

Derivative works are works derived from previously existing (or original) works. Under the law, authors or owners will only be accorded protection over derivative works insofar as those works do not prejudice, or infringe upon, the rights held by authors or owners of the original works. This is an especially important consideration in light of the low-code and no-code trends in the application development software industry, as these trends often involve the reliance on previously existing rights in works, which the author or owner of a later software application would otherwise infringe absent appropriate authorization or consent.

Authors and individuals or entities that commission the development of software applications and computer programs that encompass or build upon prior existing works (for example, open-source software) should ensure the copyright owners of those works have authorized their appropriate use and commercialization. For an individual or entity commissioning the development of the work, a valid indemnity clause should be sought from the author or owner of the work whereby the author indemnifies them from any claims of infringement and losses arising as a result of use.

There are a number of copyright considerations that software developers or those commissioning their services ought to turn their attention to at the outset in order to ensure appropriate protections are in place. Correctly understanding and addressing the idea-expression dichotomy, the “work for hire” rule and derivative works, as applicable, should serve to ensure the seamless development and commercialization of software applications and computer programs.

By: Elias Nassif

For more information, please contact Elias Nassif at our UAE office.