NIGERIAN COPYRIGHT LAW ON COMPUTER PROGRAMMES
1.0 INTRODUCTION
Computer programmes can be found in almost everything in this age – from cars to wristwatches. The Internet of Things is becoming more popular; people are connecting everyday items to the internet to increase functionality.[1] Items as basic as coffee makers, lamps and washing machines are being integrated into the internet. This is just one use of computer programmes. Research is now heavily dependent on artificial intelligence, powered by such programmes. There are currently 2.7 zettabytes of data in the world. The physical equivalent of this is three quadrillion paper-filled storage boxes,[2] which means too much data for any person to search through. Artificial intelligence is powered through programmes to do the searching.
Even more, creating computer programmes has never been as easy as it is today. In a few months, any person with a mobile device or a computer and an internet connection can learn to create one. There is an explosion of self-taught software developers. These programmes have become an integral part of modern culture. Therefore, there is a need to know the legal implications of all the source codes existing; specifically, as it relates to intellectual property rights, the rights of the authors, and the rights of the general public.
2.0 UNDERSTANDING COMPUTER PROGRAMMES
Computer programmes are written in programming languages or other forms of machine-readable languages.[3] There are a number of these languages. However, copyright cannot subsist over them.[4] It would be similar to attempting to have copyright over a spoken language such as English. Therefore, all members of the public may have free access to the use of those languages. Some may need to be compiled before a computer can read them. Where this is the case, the creator may sell software needed to compile the language; this is the only way they could restrict the use of the languages which have been created and made accessible to the public.
The languages used to write computer codes work very much like spoken languages, albeit with less flexibility. They have syntaxes and rules which must be followed by the writer of the code to be interpreted by the computer. A person who is skilled at writing codes in a language will be able to give complex instructions to the computer. Also, as there are different ways of communicating the same information in a spoken language, there are different ways of giving the computer the same instruction through codes.
Codes written by separate individuals will be substantially different, even where the codes are written to achieve the same purpose. The difference becomes even more glaring when the codes become hundreds, thousands, or even tens of thousands of lines long. This is much similar to how humans can pass the same information to each other using different combinations of words, and the difference would become more obvious as the information becomes longer. Furthermore, just as what is written in one spoken language may be translated to another, computer software written in one programming language may be copied in another language with some syntax variations.[5] This is what makes it possible to determine whether or not a code is original.
3.0 THE LEGAL FRAMEWORK FOR PROTECTING COMPUTER PROGRAMMES
It is a generally accepted principle that a man should have the right to reap what he has sown.[6] This principle extends to allowing people gain profits from whatever efforts they have exerted. This is one of the justifications of the intellectual property regime.[7] There is also the fact that protecting such computer software will urge more people to create technology which will be useful to the general public. It is because people know that there is potential profit if a marketable technology is created that they will continue to expend resources on creation.
Where there is no legal protection, individuals and organisations alike will generally not be motivated to invest much in the creation of new technologies. It would also encourage secrecy, and thereby stunt growth and the spread of knowledge. This is especially true for a sector like software development, which is heavily reliant on building on previously available technology. Without such rights, there would be nothing to stop freeloaders from taking advantage of the intellectual creation of others. All they would need to do is market the software, obtained at little or no cost.
In addition to the need for a copyright protection regime, the protection regime should strike an appropriate balance between the rights of copyright owners regarding computer software and the rights of the public. Too much shall work against the public need, and too little shall work against copyright holders in computer programmes. There are three regimes through which the source codes of computer software may be protected: copyright, patents and as trade secrets.[8]
3.1 Copyright in Computer Programmes
The Nigerian copyright regime is contained in the Copyright Act.[9] Where a person can lay claim to copyright over a work, the person becomes entitled to both moral and economic rights over that work. Moral right is the right to be recognised as the creator of a work. The right does not expire, and it is inalienable. Economic right, on the other hand, is the exclusive right to carry out some activities over the work, especially activities which shall create commercial profit.[10]
Section 1 of the Act provides for the works which are eligible for copyright, one of which is literary works. The Act goes further to define “literary works” as including “computer programs”.[11] Therefore, it cannot be disputed that computer software programmes are eligible for copyright. This is so irrespective of the quality of that computer programme. The only conditions which need to be fulfilled for copyright to subsist are originality and fixation.[12]
Originality refers to the sufficient effort which has been given to the work by the author to distinguish it from all other extant works of that nature. For the author of a computer software program to claim copyright over that work, the work must be sufficiently original. This does not mean that the entirety of the work should be original. Even a work which infringes the copyright of another may be copyrightable.[13] However, a portion of that work must be original. Therefore, if the writer of the source codes of a computer program depends on codes previously written by another, copyright may still subsist if there is an original character of the new codes written.
This low-threshold requirement of originality is vital where computer software copyright is concerned. Libraries and frameworks created by other persons and over which other persons hold copyright exist and are often used in the writing of new codes. Therefore, the fact that the creator of a computer software relied on an online library or framework will not change the existence of copyright in that new work. The skill of the programmer in using that library or framework to create something new may also grant originality.
The second requirement is fixation. The work must be “…fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.”[14] This requirement means that the source codes must have been either typed on a computer, written on a piece of paper, or must be contained in any other medium from which it can be perceived. It is not enough for the programmer to have an idea of the codes to be written; the codes must have been written.
There are two important points to note where software is protected through copyright: the copyright exists automatically from the point when the work is created and only the medium of expression, rather than the ideas, is protected.
It is a general rule that copyright subsists from the moment the work is created. Once it subsists, copyright shall protect both the source code and the design created by the source code on a screen, where such exists. There is no need to register to lay claim to copyright; however, registration shall make proof in cases of infringement easier.
The nature of copyright is that it protects only expressions, and does not protect ideas. Copyright will not protect the method used to achieve a particular result; it only protects the particular mode of expression used to write the source codes. Therefore, another code which copies an idea contained in one source code shall not qualify as an infringement. Minor alterations to a code as it is copied shall not change the fact that it is copied. One example is how some programming languages ignore white space.[15] If a person were to take a source code and remove all of the white spaces, it would still be an infringement on the original code due to the obvious similarity. Also, a copy from one programming language to another shall still be infringement when done without authorisation.
3.2 Patent over Computer Programmes
The patent system is another way through which computer software programmes may be protected. It offers greater protection than copyright, but also has greater requirements than copyright. Copyright only requires originality and fixation, and a programme shall still have copyright where it is useless, does not work, or requires no significant skill to write. With patents, on the other hand, the work must be new, result from inventive activity and should be capable of industrial application.[16] Both products and processes may be patented.[17]
A patent is an exclusive right granted for an invention, a product or process providing or offering a new practical solution to a problem or dilemma.[18] A patent right grants the “statutory inventor”[19] a temporary, but exclusive right to the commercial exploitation of an invention. It gives the inventor the exclusive right to exclude others from producing, using, or selling the patented invention in that country without the patent owner’s consent or being permitted by law, for 20 years subject to renewal.
The patent protection offered will be more satisfactory to a programmer because it protects the processes and methods involved in creating the software. Therefore, its protection is wider than that offered by copyright.
A product or process will be regarded as new if it was not made available to the public before the application for the patent was made.[20] The inventive step requirement is that it should not be obvious to a person sufficiently skilled in that industry. Therefore, a software that solves a problem in an obvious method which most skilled persons in that industry would not regard as ‘out of the ordinary’ shall not be patentable. Lastly, the software must be capable of being used in an industry. Patents have been granted for a number of computer programmes which satisfy the requirement.[21]
3.3 Computer Programmes as Trade Secrets
Another method through which computer software may be protected is as trade secrets.[22] There is no statutory provision for trade secrets in Nigeria.[23] A trade secret is information which is available to a person and not available to the general public.[24] It gives the owner of that trade secret competitive advantage. It is a creation of contract law, and it is maintained through the signing of non-disclosure agreements by those whom the secret is revealed to. If the agreement is breached, then the person responsible shall be legally liable. Unlike patents and copyright which expire after some time, trade secrets may last for however long is desired.
Computer software can be protected as trade secrets as source codes are often not available to the general public. One example is a mobile application. The codes would be run by the mobile device and display the result of the codes; the operator of the mobile phone will not see the source codes of the application being run.
Certain steps must be taken to safeguard knowledge of computer programmes if they are to be protected as trade secrets. Confidentiality agreements should be drafted and access to knowledge should be on a need-to-know basis. This is to ensure that fewer people have access to the information.
4.0 CONCLUSION
The three regimes of protection available for computer software have their pros and cons. Copyright is the easiest right to have, as it subsists automatically, but offers relatively little protection. Patents, on the other hand, are difficult to obtain while offering the most protection. Trade secrets will only last so long as persons who come by the information agree to non-disclosure. Where a person breaches the agreement, or another person comes by the information through another means, they shall be free to disclose it to others.
The protection given to computer software programmes is not absolute; it cannot be. The general public has an interest in the limitation of this right. It would be awkward if the first person to create a social medium was allowed to obtain a patent over it, and had a monopoly of the right for twenty years or more. The right to information of every other person must also be considered. This is why the “stories” feature which was started by Snapchat was implemented in other social media like Instagram, Facebook and WhatsApp with no legal liability.
Admittedly, the Nigerian intellectual property regime grants protection to computer software programmes. Still, this is not enough. The law merely makes reference to computer programmes in passing and does not recognize its unique nature. While computer programmes are “literary works”, their values do not have the same nature as books. The UK Copyright, Designs and Patents Act 1988 goes further to recognize the rights of users of software especially as regards the making of backups, de-compilation and observing, studying and testing of computer programmes.[25] These uses shall even override any contractual term to the contrary under the UK law. The Nigerian law, on the other hand, is silent on uses permitted in relation to computer programs. The legal position on areas like reverse engineering needs to be expressly spelt out to prevent the stifling of growth.
Fawaz Haroun is a 500-level student of the faculty of law, University of Lagos. He is an Executive Editor of the UNILAG Law Review. He was a member of the UNILAG team at the Philip C. Jessup Moot competition 2020, where his team won the National rounds and had the best Memorial submissions in the National rounds. His team also came in second place at the Foreign Direct Investment Moot 2020 African Regional Rounds. In his personal time, he enjoys writing, reading, and coding.
[1] Jacob Morgan, “A Simple Explanation Of ‘The Internet of Things’”, available at https://www.forbes.com/sites/jacobmorgan/2014/05/13/simple-explanation-internet-things-that-anyone-can-understand/#63b71f781d09 (accessed 6 September 2020).
[2] BetterBuys, “Visualizing the Size of Databases”, available at https://www.betterbuys.com/dms/visualizing-the-size-of-databases/#:~:text=A%20zettabyte%20(ZB)%20equals%201%2C000,quadrillion%20paper%2Dfilled%20storage%20boxes (accessed 6 September 2020).
[3] Programming languages are not the only languages used to write codes to be run on machines. Others, such as the markup languages, also exist. This article shall treat all machine-readable languages as the same.
[4] Caleb Garling, “Can You Copyright a Computer Language? Google and Oracle Set to Find Out” available at https://www.wired.com/2012/04/google-oracle/ (accessed 6 September 2020).
[5] Bernadine Racoma, “Can Programming Languages Be Translated or Interpreted?” available at https://www.daytranslations.com/blog/programming-languages-translated/#:~:text=Yes%2C%20programming%20languages%20can%20be,code%20in%20a%20different%20language. (accessed 6 September 2020).
[6] Flora IP, “Justifying Intellectual Property Rights” available at https://www.floraip.com/2018/02/19/justifying-intellectual-property-rights/#:~:text=school%20of%20thought.-,Labour,efforts%20exerted%20to%20create%20them (accessed 6 September 2020).
[7] Flora IP, “Justifying Intellectual Property Rights” available at https://www.floraip.com/2018/02/19/justifying-intellectual-property-rights/#:~:text=school%20of%20thought.-,Labour,efforts%20exerted%20to%20create%20them (accessed 6 September 2020).
[8] Bisola Scott, “Intellectual Property Protection For Software Rights In Nigeria” available at https://www.mondaq.com/nigeria/trademark/830390/intellectual-property-protection-for-software-rights-in-nigeria#:~:text=Software%20can%20also%20be%20protected,fixed%20in%20a%20tangible%20format (accessed 6 September 2020).
[9] Nigerian Copyright Act 1988, Chapter C28, Laws of the Federal Republic of Nigeria 2004.
[10] Section 5 of the Copyright Act.
[11] Section 39 of the Act.
[12] Section 1(2) of the Copyright Act. The author of the work should also be capable of holding copyright under Nigerian law.
[13] Section 1(4) of the Copyright Act.
[14] Section 1 (2)(b) of the Act.
[15] “Whitespace” includes spaces created by the space bar, the tab key and moving to a new line.
[16] Section 1 of the Patents and Designs Act, Cap P2 LFN 2004.
[17] Article 3(3) of the Patents and Designs Act.
[18] Bisola Scott, “Intellectual Property Protection For Software Rights In Nigeria” available at https://www.mondaq.com/nigeria/trademark/830390/intellectual-property-protection-for-software-rights-in-nigeria#:~:text=Software%20can%20also%20be%20protected,fixed%20in%20a%20tangible%20format. (accessed 6 September 2020).
[19] The statutory inventor is the first to file for a patent. Where the statutory inventor is not the real owner and filed for patent without authorization, the real owner may become the statutory inventor.
[20] Article 1(2) of the Patents and Designs Act.
[21] Justia Patents, “Programming Language Patents (Class 717/114)” available at https://patents.justia.com/patents-by-us-classification/717/114 (accessed 6 September 2020).
[22] SPA Ajibade, “Intellectual Property Protection for Software Rights in Nigeria” available at http://www.spaajibade.com/resources/intellectual-property-protection-for-software-rights-in-nigeria/ (accessed 6 September 2020).
[23] Bisola Scott, “Intellectual Property Protection For Software Rights In Nigeria” available at https://www.mondaq.com/nigeria/trademark/830390/intellectual-property-protection-for-software-rights-in-nigeria#:~:text=Software%20can%20also%20be%20protected,fixed%20in%20a%20tangible%20format. (accessed 6 September 2020).
[24] SPA Ajibade, “Intellectual Property Protection for Software Rights in Nigeria” available at http://www.spaajibade.com/resources/intellectual-property-protection-for-software-rights-in-nigeria/ (accessed 6 September 2020).
[25] Section 50 of the UK CDPA.
