The adoption of smart technology solutions by the health and care sector has exploded in 2020. The pandemic has driven the sector to increase its use of smart phone technology solutions (“Apps”), an example of which is conducting video consultations and assessments.
The adoption of smart technology solutions by the health and care sector has exploded in 2020. The pandemic has driven the sector to increase its use of smart phone technology solutions (“Apps”), an example of which is conducting video consultations and assessments. Adoption has historically been slow to develop across the sector generally, potentially due to perceived risks in maintaining integrity of special category personal data.
Now, more health and care providers are transitioning to greater use of Apps; the Covid-19 pandemic has propelled providers to implement systems which can assess an individual’s needs remotely.
In the ‘new normal’, the sector will increasingly adopt and implement its use of Apps to assess and deliver person-centric health and well-being advice and services. The Apps which are created will be in demand, competition is likely to be high and the potential commercial value to providers is significant.
Apps are created by combining software with data (in its broadest sense and by use of personal data). Part 1 of this two-part series will explore intellectual property rights in the App and how these are protected commercially, whilst Part 2 will delve into data confidentiality.
Apps are largely software which consists of lines of code or instructions which a computer reads and executes. There are two types of code. Source code is the language which humans read and write. This source code is then compiled to create object code which is only capable of being read and executed by a computer. This code is often protected by copyright . Health related Apps may (depending on the service need) require validation which relies on the use of data, in anonymous and identifiable forms. This data is often collated and contained in a database, which is also protected by copyright as well as being protected as a database under the Database Regulations (also known as a ‘Sui Generis’ right).
A market ready App may also have protection in the form of registered and unregistered trade mark rights but these are not considered further here.
Copyright protects the expression of ideas and not the idea itself. It is possible for two identically functioning pieces of software to exist without one being copied from the other. In this case, neither author would be liable for copyright infringement of the other’s work.
Copyright in Apps will subsist in each of:
The App provider or commissioning party will want to ensure it owns and has exclusive rights to use this copyright as well as ensuring it has physical access to the records. Physical access is addressed by putting in place terms which oblige any 3rd party developer to deliver up all such materials to the commissioner. If refused, the commissioner has a right to claim against the developer for breach of contract which can be remedied by specific performance and/or damages being awarded.
Data in its simple form is not protected by law. Personal data cannot be legally owned; it is always subject to the rights of the individual to which the data relates. However, if personal data is anonymised and compiled to create a database of information, that database may be protected by law as an intellectual property right. To the extent any data is shared with 3rd parties, suitable confidentiality obligations should be put in place with any recipient of such data to ensure there is a direct written and enforceable obligation on the recipient to only use any data in accordance with the purpose for which it is provided. Any subsequent database creation which may occur is then subject to the terms discussed below.
It is a common mistaken belief that a commissioning party owns the copyright in any deliverable.
In law, the first owner of copyright is the author, unless (i) the copyright is created by an employee in the course of their duties; or (ii) the parties agree otherwise in writing.
Employers of software developers will own the copyright in the work authored by its employees. This is the position under English law even if the employee’s contract of employment is silent. However, it is good practice to ensure that all employment contracts expressly set this out to minimise the risk that an employee may dispute the position.
Third parties (e.g. sub-contractors) will own the copyright in the work they create unless there is written agreement to the contrary. Where you are the commissioner of any work, you will need to ensure that the terms of any agreement:
Including each of the above points goes a significant way in addressing potential risks that you are subject to a future claim being made against you for intellectual property infringement.
App developers may use open source software or code libraries (“OSS”). OSS is copyright accessible from the web which is made available for use by third parties by the owners of it. It is often used by third parties on the misunderstanding that they can use it however they choose, without restriction. This is not true.
OSS is often subject to licensing terms (e.g. the GNU General Public License (often abbreviated to “GPL”)). Use of the GPL is subject to users complying with certain conditions, including: displaying a copyright notice; disclaiming any warranty; keeping GPL notices intact and providing a copy of the GPL. It is important to note that any modification and redistribution of the software requires the same conditions to be applied to its future purpose. This is a potential risk if the App is to be marketed commercially as a third party could access the same software and duplicate the App without the risk of copyright infringement. This is also why the visual elements and any technical file are important as they provide additional copyright protection in the event that the App’s code was created from OSS software as if these are copied, the copying is potentially copyright infringement.
Some of the risks with using OSS in technology solutions include:
Apps have a valuable place in the healthcare market and will likely continue to attract significant investment to produce better ways of delivering healthcare solutions. However, failing to address the above risks prior to starting App development has the potential to thwart any project timelines for implementation and commercialisation, but is also at increased risk of being subject to a future dispute.
If you would like to know more, please get in touch with Helen Jones or Selina Hinchliffe.
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