Legal Framework For Effective Protection Of Computer Software Programs In Nigeria
The steady development of technology and the invention of various computer software and programs are a welcome development for the Nigerian economy because of the opportunities they create for employment and income generation. However, owing to the sensitivity and vulnerability of computer software as an intellectual product, it is highly susceptible to intellectual theft. In view of this, it has become inevitably necessary to ensure the legal protection of computer software products against intellectual property theft.
The software industry is a high-earning sector of the economy in many developed countries of the world as the sector rakes in billions of dollars. As Information Technology (IT) continues to develop in Nigeria, there has been a constant increase in the rate of computer software piracy. This has resulted in loss of income and resources for IT practitioners and the Nigerian economy as a whole. The Business Software Alliance (BSA)[i] has revealed that, in recent times, a whooping sum of $20 billion is lost annually as a result of the sale and distribution of pirated software in the global market. This underscores the significance of the issue of computer software piracy globally and why it is imperative to tackle it effectively.
In Nigeria, many software developers are yet to realize the significance of software protection and the need to take proactive steps towards securing legal protection for such rights. This has led to serious breaches of their ownership rights in computer software that they worked so hard to develop. This article is aimed at creating awareness about the various means of protecting intellectual property rights of computer software developers from theft and how that protection can be secured under the law.
What is Computer Software?
Computer Software is defined as a program which enables a computer to perform a specific task, as opposed to the physical components of the system (hardware). The program involves the sending of instructions from the application software, through the system software, to the hardware which ultimately receives the instruction as a machine code.[ii]
Computer software is usually protected by the encryption of software codes to such software or legally, by registering the software under the laws governing patents and trademarks. A notice of the development of the software could also be lodged with the Nigerian Copyright Commission or a copyright collecting society in Nigeria for record purpose; as copyright ordinarily vests in the developers without a legal requirement for registration.[iii]
Owing to the immense value and significance of computer software to both individuals and corporate organizations, it has become very important to ensure the effective legal protection of computer software as an intellectual property. Globally, software is legally protected and many software developers, programmers and organizations view software as intellectual property to be jealously guarded because of its economic value. Treating computer software and related products as intellectual property creates an opportunity for firms, organizations and individuals to exercise a reasonable level of control over the use of computer software and how it gets to the public. However, in cases where software is not patented, copyrighted, trademarked or protected by trade secrets or other forms of legal protection, users may exploit the unauthorized use of the software thus resulting in the loss of commercial revenue to their inventors. An even worse scenario could also involve the loss of the right to use the software developed by its true inventor.
Concept of Intellectual Property
Intellectual Property is a piece of work which emanates from the ingenuity of an individual or corporate organization. It is usually abstract. Examples of intellectual properties are books, poems, songs, movies, computer software, patents, industrial designs but to mention a few.
Suffice it to mention that owners of intellectual property rights are faced with the threat of having their works pirated, imitated or stolen, thus depriving the creators due credit for their creativity, a loss of opportunity to create viable source of income and loss of fulfillment. In many cases, business organizations with valuable intellectual property such as software have to employ adequate strategies to guard against intellectual property theft including from their own employees.
Some of the avenues which could be employed in the protection of the intellectual property of a company’s or an individual’s computer software is getting the employees or business associates of the said individual, as the case may be, to sign non-disclosure agreements or restricting employees’ or associates’ access to intellectual property such as a software under development.
MODES OF COMPUTER SOFTWARE PROTECTION:
The various means which could be employed to protect software from unauthorized use in Nigeria include copyright, patents, execution of trade secrets /non-disclosure Agreement and trademarks. Some software developers prefer one medium of software protection to the other based on the scope and advantage of the legal protection covered by each. As a software developer, making a decision on which type of software protection to employ is a very critical step in the process of securing adequate protection.
Trademarks are another option, but they don’t protect intellectual property software code. What they protect is the name of the software, or a symbol which is used to advertise the software.[iv] Trade marking your software’s brand name is a good way to keep others from marketing a product under a confusingly similar name to pass off one’s software.
COPYRIGHTS AS A FORM OF PROTECTION FOR COMPUTER SOFTWARE
A copyright is described as a right granted to the author or originator of certain literary or artistic productions, whereby the creator is granted, for a limited period, the sole and exclusive privilege of multiplying copies of the literary or artistic works and publishing or selling them. It is a protection which is usually granted to original artistic, computer software programs, literary, musical, cinematographic films, sound recordings, broadcasts and publications. It creates an opportunity for the owner of a creative work or innovation to own the exclusive right to produce, publish, translate, broadcast or adapt such works.
In the Nigerian Legal System, intellectual property protection for computer software can be achieved under copyrights or patents registration. A computer software can be protected under the Copyrights Act of Nigeria.[v]
There seems to be a variety of opinions as to whether or not computer software is an appropriate subject for a patent grant in Nigeria. It bears noting that while certain inventions may be eligible for patent protection, not all software-related inventions are patentable as they are required to satisfy certain conditions in order to qualify. The Patents & Designs Act CAP P2 LFN 2004 (hereinafter “Patents & Designs Act”) stipulates the conditions for eligibility of a work for patent grant as follows:
- It must be a new invention.
- It must constitute a non obvious improvement on a previously patented invention.
In either case above, it must be capable of industrial application. [vi] Once the foregoing conditions are established, a work or invention qualifies for a patent grant. An application could then be made to the Registrar of Patents & Designs for the purpose.
In order to protect the function of software, a software developer would require a software patent. A software patent would ensure the protection of elements such as:
- Solutions to computer problems
The two kinds of patents available for the protection of software are:
Utility ensures the protection of what the software does (application), while the Design protects any decorative part of the computer software.[vii]
As opposed to the Copyright Act, the Patents & Design Act ensures the protection of the invention itself. By virtue of same, persons desirous of creating a software program that does the same thing as a computer software does but with a different code are thus prevented from doing so. However, the patent doesn’t protect your specific lines of code against plagiarism the way a copyright does.[viii]
The Validity of Computer Software Patent Registration Outside Nigeria:
A Nigerian software patent is only valid in Nigeria. If protection of a patent is sought in other countries, one will necessarily need to make a separate application in each of those countries. This is due to the fact that patent laws vary from country to country and are largely territorial in application.[ix]
Differences between patent and copyrights protection in Nigeria:
The major difference between a patent and a copyright is that, while a patent can protect your computer software program from imitation, software copyrights have a more limited scope and will only guarantee the protection of your software in situations where an individual copies an actual executable or source code or graphics from your software.
TRADE SECRETS AS A VIABLE MEDIUM OF PROTECTING COMPUTER SOFTWARE
A trade secret refers to information which is available to an individual or a company and at the same time unavailable to other individuals, businesses or corporate organizations. The utilization of trade secrets in businesses gives the individual or company an edge over its competitors. One does not have to file any documents or apply with any agency to register a trade secret. However, there are reasonable measures to be employed to keep a computer software a trade secret. Some of these measures include:
- Keeping the software away from the public;
- Employees or contract staff in a software development firm must sign non-disclosure agreements;
- Ensuring that intellectual property data is stored in compartments, and give access only to employees on a need-to-know basis.
It is important to note that a trade secret can last for as long as you want. However, unless someone discovers your secret by what the law construes as “fair means” your trade secret will last forever. In a case where an individual or organization independently discovers a trade secret similar to that of another individual or organization, such individual or organization is entitled to continue its use of same and no legal action will lie against them.
Sometimes, companies and individuals do not regard trade secrets as an adequately secure means of guaranteeing the protection of their valuable software inventions. However, an advantage trade secrets have over other legal means of computer software protection is that it extends to other minor things, such as customer lists, which may not easily be protected by copyrights, patents or trademarks. Illustrative of this is a computer software developer who writes a program that predicts UEFA Champions League matches with a 90% accuracy. If the inventor patents his software, after 20 years, everyone would have the opportunity to create, use, and sell similar software. However, if the inventor treats the programs of the software as a trade secret, he or she could ensure effective and adequate control of the source code indefinitely and no individual or organization will figure out how he or she achieved such accuracy.
Inventors are encouraged to take adequate steps towards developing and securing a trade secret protection program for computer software programs. It is necessary for a software developer to maintain confidentiality of the source code in order to ensure the protection of his computer software program from intellectual theft. A proper protection program will include processes such as drafting confidentially agreements, having password protection, ensuring limited access to source codes, and creating a limit to the number of individuals or organizations with access to such sensitive information.
It is important to note that Nigeria is a signatory to an Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). An objective of the TRIPS agreement is to establish a nexus between international trade and intellectual property law. The agreement which is regulated by the World Trade Organization (WTO), stipulates the minimum standards that govern intellectual property issues across the WTO member states. Article 39 of TRIPS agreement creates a specific provision for the protection of trade secrets.[x]
Paid Software Developers and Right to Resulting Copyright
The Copyright Act provides that whoever produces or creates an innovation owns the copyright. However, there are certain exceptions to this rule which include the principle of work for hire.[xi] Section 10 (1) of the Copyrights Act primarily provides for ownership of a computer software program to be vested in the independent contractor where he/she created the program.[xii]
However, there are cases where some of the jobs an independent contractor undertakes for a company or an organization may fall under the “work-for-hire” principle. They include:
- Part of audiovisual work
- A translation
- Supplementary work
- A compilation
- A test or test answers
- An atlas
- A set of directions
In situations such as this, a contract between an independent contractor and the company could be executed to provide for the company to subsequently own the copyright. Another option is for the independent contractor to license his/her/its copyright to the company rather than handing over the copyright.
Whether as a business outfit or an independent contractor, it is important and proper to ensure that these details are clearly stipulated before the commencement of such contract. Who owns the copyright of software is of great essence. This is because of the multiple rights that a copyright vests in its owner. For example a copyright over computer software programs empowers the copyright owner. [xiii]
- To give it away or sell copies;
- To create “derivative works”;
- To reproduce it;
- To post the code on a website
CONTRACTS AND LICENSING TO PROTECT SOFTWARE INTELLECTUAL PROPERTY.
It is interesting to note that copyrights and patents have restrictions with regards to the protection of computer software. In order to cater for the risks associated with the protection of computer software intellectual property, a lot of individuals/organizations adopt the use of contracts and license agreements.
A license allows another party, such as a business entity, to use the software you developed.
On the other hand, handing over the copyright, or assigning the copyright, gives the party to whom the copyright is being handed over to legal ownership of your software invention. Regardless of the medium you choose to adopt, your contract needs to be specific, detailed and adequate for the purpose.
THE RELEVANCE OF LICENSING AS A MEDIUM OF PROTECTING SOFTWARE INTELLECTUAL PROPERTY
- Licensing in some cases serves as a better alternative to individuals and corporate bodies than the sale of a computer software intellectual property.
- A license ensures the protection of your computer software from persons or individuals that might want to reverse-engineer, copy, or hand it out.
- In a bid to ensure that a license covers all relevant areas, licenses are typically granted via the execution of an agreement.
PROTECTING COMPUTER SOFTWARE THROUGH TRADE MARKS
Prior to marketing software, it is important for software developers to take adequate steps to create, develop and protect the brand name for the software. A trademark is a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark whether with our without any indication of the identity of the person, and means, in relation to the certification trade mark, a mark registered or deemed to have been registered under Section 43 of the Trademarks Act. [xiv] Trademarks are used to protect the name of one’s company, product, internet domain names, symbols, logos images, symbols, slogans, colors, product designs and product packaging.
Protecting your computer software by trade marking your software name is very crucial especially in cases where your computer software is not secured by other forms of legal protection. For instance, an internet browser may not be patentable or protected by copyright. However, a trademarked brand name can create a perception of the browser by the public as a unique product solely associated with a particular business organization.
It is hoped that the reader has acquired a deeper insight into the legal framework available in the country for developers, to secure the effective protection of computer software from infringement, which leads to loss of credit and future income.
In a world where software technology is thriving in dynamism and creativity, the use of the legal protection is of utmost importance to facilitate the growth of the Nigerian information and communication technology industry and ensure that the remuneration due to developers of computer software in the industry is accruable to them.
This article was authored by John I. Ibe, Esq. who carries on his legal practice out of Alliance Law Firm.
[i] Business Software Alliance is a company which undertakes the provision of programs to enhance copyright protection, cyber security, trade, and e-commerce. It tracks illegal software downloads and distribution of pirated software on the internet through online auction sites. The company provides various forms of protection for software providers’ intellectual property rights, enforces software copyright legislation, and encourages compliance. Its cyberspace policy review dashboard tracks policymakers’ progress in various categories set forth in the administration’s report by providing updates and industry assessments.
[ii] Science Daily,
“Computer Software”.https://www.sciencedaily.com/terms/computer software.htm, accessed 11th March 2019.
[iii] Mathew R. Harri, “Copyright, Computer Software and Work Made For Hire” Published by Michigan Law Review. Vol. 89. No 3. Dec 1990 Page 661.
[iv] Arek Dvornechuck, “How To Copyright and Trademark a Logo” ebaqdesign.com. https://ebaqdesign.com/blog/trademark-logo,accessed 13th March 2019.
[v] Section 51 of the Copyrights Act CAP C28 LFN 2004 on the description of literary works to include computer programs states as follows:
“literary work” includes irrespective of literary quality, any of the following works or works similar thereto –
- novel, stories and poetical work;
- plays, stage directions, film scenarios and broadcasting scripts;
- chorographic works;
- chorographic works;
- computer programmes
- text-books, treatises, histories, biographies, essays and articles;
- encyclopaedias, dictionaries, directories and anthologies
[vi] Section 1 of the Patents & Designs Act, prescribes the conditions for patentability. It provides as follows: 1 (1) Subject to this section, an invention is patentable (a) if it is new, results from an inventive activity and is capable of industrial application or. (b) if it constitutes an improvement upon a patented invention, and also is new, results from inventive activity, and is capable of industrial application. Three conditions are primarily set by this provision for patentability: 1. The invention is new 2. The invention involves an inventive step 3. The invention must be capable of industrial applicability The secondary provision which is made under section 1(1) (b) is that an invention will still be patentable if it is an improvement on an already patented invention.
[vii] Joe Rung, Esq., “What are The Different Types Of Patents” Legal Zoom.com.: www.legalzoom.com, accessed 28th September 2018.
[viii] Upcounsel website, “Software Patent or Copyright: Everything You Need to Know” upcounsel.com. www.upcounsel.com/software-patent-or-copyright, accessed 8th March 2019.
[ix] Ufoma Akpotaire, “Some Basic Facts about Patents In Nigeria” (Posted on January 6, 2019) Nigerian Law Intellectual Property Watch. www.nlipw.com, accessed 28th September 2018.
[x] Article 39 (1) TRIPS states as follows: “In the course of ensuring effective protection against unfair competition as provided in Article 10 (b) of the Paris Convention (1967), members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3.”
39 (2) Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information: (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
39 (3) Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public or unless steps are taken to ensure that the data are protected against unfair commercial use.
[xi] FindLaw.com, “Copyright Ownership: The Work Made For Hire Doctrine I”: https://corporate.findlaw.com/intellectual-property/copyright-ownership-the-work-made-for-hire-doctrine, accessed 11th March 2019.
[xii] Section 10 (1) of the Copyrights Act provides that “Where an independent contractor creates a computer software program, the copyright belongs to the independent contractor.”
[xiii] Justia Legal Resources,“Copyright Ownership”, www.justialegal resources.com, accessed 28th February 2019.
[xiv] Section 67 of the Trade Marks Act 1965 with regards to the use of trademarks provides as follows:
“A trademark is a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark whether with our without any indication of the identity of the person, and means, in relation to the certification trade mark, a mark registered or deemed to have been registered under Section 43 of the Trademarks Act.”