The world is a global village and daily, it becomes increasingly technologically advanced. As technological inventions and creative innovations pave the way for our digital future, there is an ever-increasing need for the protection of intellectual property rights. Intellectual property rights are those rights borne from creative works which are products of a person’s intellect, skill, time and effort. Intellectual Property law protects these rights against unauthorized use or exploitation. Such works which need to be protected range from literary, musical, artistic works, cinematograph films, audio recordings, inventions, marks, symbols and industrial designs. Intellectual property rights are broadly categorized into copyright, patent, industrial design and trademark.
Intellectual property rights are mainly created by statute. The United Nations (U.N.) provides an international focus on intellectual property rights through the World Intellectual Property Organization (WIPO). Patent systems worldwide are regulated by international legal frameworks such as the Patent Cooperation Treaty (PCT), the Patent Law Treaty (PLT), The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) and the Agreement between the World Intellectual Property Organization and the World Trade Organization (WTO-WIPO co-operation). Many creative works and inventive products are worthy of intellectual property protection. 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.
Hence, the main thrust of this article is to take a close look at the ways in which computer software can be protected in Nigeria and how effective these means of protection are, given the sensitive nature of computer software.
Firstly, what is computer software? This can be defined in a number of ways, namely; as a program that enables a computer to perform a specific task, as opposed to the physical components of the system (hardware). It can also be defined as a collection of data or computer instructions that tell the computer how to work. This is in contrast to physical hardware, from which the system is built and actually performs the work.
The various means which could be employed to protect computer software from unauthorized use in Nigeria include copyright, patents, non-disclosure agreements 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. The choice of which software protection to use should not be taken lightly, as it is a critical step in the process of securing adequate protection for one’s computer software.
2.0 FORMS OF COMPUTER SOFTWARE PROTECTION AS INTELLECTUAL PROPERTY
These protect the name of the software, or a symbol which is used to identify the software. The use of trademarks is a good way to keep others from marketing a product under a confusingly similar name to one’s own software. However, trademarks do not protect the intellectual property of the software code itself. Therefore, it will likely not be a secure option for anyone seeking to protect the software code. The Trademarks Act 1965 provides for the registration of trademarks under Sections 5, 6, 9, 18 and 22 of the Act.
A copyright is a right granted to the author or creator of certain literary, artistic, musical works, cinematograph films, sound recordings, broadcasts and publications. It is a protection usually granted to original works which falls within any of the categories listed above. It gives the owner of the work the exclusive right to produce, publish, translate, broadcast or adapt such works. Under Nigerian Copyright Law,[i] hereinafter referred to as the Copyright Act, intellectual property protection for computer programmes as literary work can be obtained. The advantage of copyright protection for computer software is that it protects specific lines of code against plagiarism, which is not something that any other form of intellectual property protection can offer. Furthermore, on copyright protection, the Copyright Act provides that whoever produces or creates an innovation owns the copyright.[ii] However, there are certain exceptions to this rule, which include the principle of work for hire. In such a case, the ownership of the work belongs to the employer or contractor who hired the creator of the work, rather than the creator himself/herself. This point is very important to note, as a copyright over computer software gives the owner of the copyright the right to sell copies, create “derivative works”, reproduce it or to post the code on a website.
A patent is a form of intellectual property. It is a grant from the government that gives the inventor the legal right to exclude others from making, using, selling and importing an invention for a limited period of years, in exchange for publishing an enabling public disclosure of the invention. The public can only use the invented product or process with the consent of the inventor or after the expiration of the limited time period which starts to run from the date of filing a complete patent application.
In the statutory provision guiding the protection of intellectual property rights in Nigeria, the Patents and Designs Act,[iii] provides for a period of 20 years as the duration for a patent. Under the World Trade Organization’s (WTO) TRIPS Agreement, patents should be available in WTO Member States for any invention, in all fields of technology, provided they are new, involve an inventive step, and are capable of industrial application. Nevertheless, there are variations on what is a patentable subject matter from country to country. Though accepted now, the idea that computer software could be protected by patent was not always acceptable. As early as the 19th Century, a debate arose about the patent eligibility of computer software and whether or not it should be afforded patent protection.
The main difference between a patent and a copyright with regards to software is that while a patent can protect your computer software program from imitation, software copyright has a more limited scope and will only guarantee the protection of software in situations where an individual copies an actual source code or graphic from the software.
3.0 HISTORY OF SOFTWARE PATENTS
Historically, patents have been in existence as far back as the fifteenth century when the Venetian Patent statute was issued by the Senate of Venice in 1474. However, software patents only became the subject matter of litigation in countries such as the U.S.A. in the late twentieth century. In the 1972 case of Gottschalk v Benson,[iv] the United States Supreme Court decided that a process claim directed to a numerical algorithm was not patentable because “the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.” This statement sums up the oldest criticism of and argument against software patent, which is that it is basically a patent of Mathematics and abstract laws of nature. This stance became the bane of the argument in favour of software patents, and it indeed proved a formidable one, consequent upon which the courts repeatedly denied patent grants to software programmers as was seen in cases such as Parker v Flook,[v] Diamond v Diehr,[vi] Bilski v Kappos,[vii] and Alice Corp. v CLS Bank International.[viii] It was not until the year 2014, in the case of DDR Holdings, LLC v Hotels.com, L.P. that software patenting finally got its breakthrough moment when the case became the first United States Court of Appeals for the Federal Circuit decision to uphold the validity of computer-implemented patent claims. The court ruled that in order for a software to be patent eligible, what is claimed must be more than an abstract idea and the implementation of the idea must be something beyond the routine, conventional or generic. In prior cases, the Court had ruled the claim for patent invalid. However, in the meantime, the system kept evolving and tests were being developed to aid the courts better decide such cases in the future. In this case, the Federal Circuit, applying the analytic framework developed in the case of Alice Corp v CLS Bank International, upheld the validity of DDR’s patent on its webpage display technology. For this reason, this case is seen as a keystone case for US software patent eligibility.
Patents have evolved from being used to protect processes, machines, articles of manufacture and compositions of matter. Before the year 1953, only products qualified to be patented under the United States Patent Act, until the Patent Act was modified by Congress to add the words “or processes” to the word “product” in describing what could be patented. Even then, the Congress responsible for that legislative amendment was plainly considering processes of industrial manufacture; processes that produce something at the other end. It is unlikely that anybody thought of a process at that time in terms of computer software due to the absence of applications on computer software during that period and for many years after the passing of the patent law[ix]. This position has however changed with the rise of technology and resultant development of computer software. Today, courts need quite a bit more information before a patentability determination can successfully be made: information about the underlying technology and how the patent application is written. In the absence of such vital information, the process of legal determination becomes somewhat of an uphill task. The background behind the creation of Federal Circuit was based on the finding that trial court judges had a strong aversion to patent cases for the simple reason that it was not their area of professional expertise. The technical nature of patent cases therefore necessitated the creation of a specialist court solely for that purpose. The establishment of this specialist appeal court not only served as a means for the United States to effectively interpret cases regarding software patent but it also served as the foundation of a legal framework and a lens through which other jurisdictions could consider software cases in their own jurisdiction and make better informed judicial decisions.
4.0 CONTRACTUAL PROTECTION
In spite of the benefits of copyright, patents or trademarks in the protection of computer software, a lot of individuals and companies opt for the use of contract and license agreements. A license allows another party, such as a business entity, to use the software one has developed, while allowing the owner of the computer software to retain his right of ownership of the software. For this reason, licensing serves as a better alternative to individuals and corporate bodies. Additionally, a license ensures the protection of computer software from persons that might want to reverse-engineer, copy or hand it out.
4.1 The Nigerian Angle
Section 1 of the Nigerian Patent and Designs Act[x] stipulates the circumstances under which an invention could be considered patentable. Under the 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. For the purposes of subsection (1) of this section- (a) an invention is new if it does not form part of the state of the art, (b) an invention results from inventive activity if it does not obviously follow from the state of the art, either as to the method, the application, the combination of methods, or the product which it concerns, or as to the industrial result it produces; and (c) an invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture.
In the case of software, once the above-mentioned criteria are met, in order for the patent to protect the function of the software, a software patent would be required. The two kinds of patents available for the protection of software are Utility and Design. Utility ensures the protection of what the software does (application), while the Design protects any decorative part of the computer software.
Although the basis for determining what constitute a patentable subject matter has continued to evolve over the last 200 years, it should be noted that there is subject matter that cannot be patented as provided in international law regarding patents and the Nigerian Patent and Design Act. Non-patentable subject matter includes abstract ideas (e.g., a mathematical theory or algorithm). Unlike the United States, Kenya and South Africa, Nigeria does not grant patents in respect of plants, animal varieties, and biological processes for the production of plants or animals[xi]. Section 1(4) of the Patents and Design Act specifically stipulates what does not qualify as patentable subject matter under Nigerian law:
Patents cannot be validly obtained in respect of-
- Plant or animal varieties, or essentially biological processes for the production of plants or animals (other than microbiological processes and their products);
- Inventions the publication or exploitation of which would be contrary to public order or morality.
- Principles and discoveries of a scientific nature are not inventions for the purposes of this Act.
In 2013, the Trademarks, Patents and Design Registry in Nigeria released a new journal in which they featured patents that had been registered in Nigeria. Notable in the publication was that the patents featured consisted more of products than computer software. This could be attributable to a number of factors, namely: lack of information and awareness about the availability of options for patenting computer software in Nigeria, preference for alternative means of intellectual property protection other than patents or it could be due to low rate of technological innovation in Nigeria. Whatever the reason for the relatively low number of computer software patent registrations in Nigeria, the current state of affairs makes it clear that there is much to be desired with regard to that area of intellectual property protection. Furthermore, according to The National Office for Technology Acquisition and Promotion (NOTAP), only 68 patents were recorded between the years 2016 and 2017. This is in sharp contrast to the number of patent grants that get issued every year in countries like the United States of America. This alone is a testament to the fact that the level of technological advancement of a country plays a major role in the area of computer software patenting. This accounts for the significant involvement of more technologically advanced nations in computer software patenting than the less technologically advanced nations. Again, this leaves much to be desired in Nigeria’s case. As the global economy becomes ever more digitalized, with software increasingly forming the basis of innovation and business competition, it goes without saying that Nigeria cannot afford to continue to lag behind in this area.
The degree to which patents are prioritized can be fully appreciated when one considers the specialist court, that is, the United States Court of Appeals for the Federal Circuit, which was established for the sole purpose of hearing patent matters on appeal in the U.S. One may be tempted to ask; “where is Nigeria’s Federal Circuit court?” Such a court would certainly serve to decongest Nigeria’s already clustered court system and would encourage specialization which would in turn foster expertise in this area, but the question of its viability in Nigeria’s legal environment is a topic for another day.
There is no doubt that software products need protection as they are valuable intellectual property assets. Failure to ensure their protection will lead to loss of commercial revenue not just to the inventors but also to the economy as a whole. When computer software is protected, innovations are facilitated and encouraged in the public domain for the common good of all. Intellectual property protection for software also provides incentives for economically efficient research and development.
In order to secure adequate protection to enable software developers maximize the benefits of their work and prevent unauthorized exploitation by third parties, enlightenment is necessary. It is this writer’s hope that having given a general overview of this subject, the protection of computer software in Nigeria will continue to be an on-going discussion in the legal sphere and that we will all do well to remember that patent protection is a proven means of supporting innovation, improving living standards and boosting employment.
[i] Copyrights Act, Cap. C28, Laws of the Federation of Nigeria, 2004.
[ii] Ibid, s. 10.
[iii] Patents and Designs Act, Section 7(1).
[iv]Gottschalk v Benson 409 U.S. 63.
[v]Parker v Flook (1978) 437 U.S. 584.
[vi]Diamond v Diehr (1981) 450 U.S. 175.
[vii]Bilski v Kappos(2010) 561 U.S. 593.
[viii]Alice Corp. v CLS Bank International(2014) 573 U.S. 208.
[x] Patents and Designs Act LFN 2004, s. 1.
[xi] Ifuoma Akpotaire, “Some Basix Facts About Patents in Nigeria”, available at http://nlipw.com/some-basic-facts-about-patents-in-nigeria/ (accessed on 9 May 2020).
About the Author
Victoria Harrison is a 400 level law undergraduate at the University of Lagos. She is a Senior Associate Editor of the UNILAG Law Review. She is passionate about human rights and often writes article so related. Victoria is an avid reader who also writes across various forms, including fiction.