INTRODUCTION
Nigeria has previously been recorded to have had the highest case of software piracy, intellectual property theft and other sharp practices in the Information and Technology (IT) industry, costing the economy over N82 billion yearly. Indeed, the majority of IP-related court cases in Nigeria concerning software development are focused on software piracy, breach of license agreements, and enforcement of intellectual property rights. However, in 2022, despite these downturns, the IT industry contributed 16.51% to the country’s GDP. Undoubtedly, software developers are pivotal in fuelling economic growth by delivering timely and innovative software solutions to meet the dynamic needs of various industries. Fintech, e-commerce platforms, mobile applications, EdTech, AgriTech, and healthcare solutions are some of the areas where software has been deployed to provide groundbreaking innovations. Nonetheless, even with the resilience demonstrated by innovators, the risk of increasing IP threats persists due to evolving methods of sharp practices such as advanced phishing scams, deep fake technology, sophisticated counterfeiting, and reverse engineering. These unethical practices potentially lead to significant revenue loss, reduced profit margins, loss of ownership, and frustrated creative efforts. It is therefore crucial for stakeholders to understand the legal framework for safeguarding their IP rights and to fully utilize the IP protections available under our laws.
CASE SCENARIO
The notable court case of Google LLC v. Oracle America, Inc. underscores the importance of registering IP rights and the complexities involved when these rights are not clearly defined or enforced. In the cited case, Oracle had sued Google for copyright infringement, arguing that Google copied significant portions of Oracle’s Java code to develop Android, leading to a decade-long legal battle that eventually reached the U.S. Supreme Court. In a landmark decision, the Supreme Court ruled 6-2 in favour of Google, determining that Google’s use of the Java APIs was considered fair use. The Court emphasized that Google’s use was transformative, as it created a new platform (Android) that was different from what Java was originally intended for. Although the Court sided with Google’s argument of fair use, creating a balance between IP rights and public interest, if Oracle had not properly registered its IP, it would not have had the legal standing to challenge Google’s use of the Java APIs. Therefore, while the Google v. Oracle case shows that legal battles can be complex and outcomes uncertain, registration is the first and most critical step in asserting and defending intellectual property in the legal arena.
THE IP RIGHTS
According to the World Intellectual Property Organization (WIPO), Intellectual Property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols; names and images used in commerce. Like real property (land), intellectual property can be owned and assigned to another, and it takes the form of tangible or intangible products. Tangible intellectual property includes books and artworks, while intangible intellectual property includes computer programmes, otherwise known as software.
Software development refers to the process of creating, designing, deploying and supporting software, signalling a continuous cycle of development. The advancement of modern computing technology has been inextricably linked to the development of software, and humanity has become increasingly reliant on software to be used in different forms, either in the development of products or improvement of services.
In Nigeria, there are four rights under which software developers can safeguard their IP. These are: Patent, Copyright, Trade Secrets and Trademarks.
First is Patent which is an exclusive right granted for an invention which entitles the patentee to decide how or whether the invention can be used by others. The applicable law for patents is the Patents and Designs Act LFN 2004. Under the Act, software can be patented if it is new, results from inventive activity and is capable of industrial application or in the alternative, it constitutes an improvement upon a patented invention.
In 2014, the U.S. Supreme Court’s landmark decision in Alice Corp v. CLS Bank International seemed to suggest that you cannot patent an idea simply because your idea uses a computer. You need to show that your invention does something more than just using a computer to perform a basic, abstract task. Claims for a patent must include a specific, substantial improvement over existing technology.
The right to a patent is granted to the person who is the first to file the application, whether or not he is the true inventor. To be recognized as the statutory inventor, an individual is required to submit an application to the registrar of patents and designs. A patent shall expire at the end of the twentieth year from the date of the filing of the relevant patent application. Where there is an infringement of this IP right, the patentee can institute an action entitling him to damages or an injunction. It should however be noted, as was held in Uwemedimo v. M.P. (Nig.) Unltd., that for an infringement of patent to be actionable, the infringement must have taken place after the application for registration was made but not exceeding the limitation period. Thus, in the instant case, since the patent had not been registered, the appellants could not sue and by the time they registered the patent, the action had become statute barred.
Second is Copyright, which is the right that creators have over their literary and artistic works. The applicable legislation is the Copyright Act, 2022 which was enacted to protect the rights of authors to ensure just rewards and recognition for their intellectual efforts, and to provide appropriate limitations and exceptions to guarantee access to creative works. Under the Act, computer programmes (software) qualify as literary works however unlike books and movies computer code has a practical purpose that generates a distinct public interest from all other copyrightable material. By fulfilling the requirements of originality and being in a fixed form, developers can enjoy copyrights to their software creations which can last 70 years after the end of the year in which the author dies.
The recent decision of the Supreme Court of the United States in the case of Google V Oracle following a protracted battle on software and computer programs precisely the usage of the API (Application Programme Interfaces) and around 11,500 lines of Java code held by Oracle which Google had deployed for building Google’s early versions of the android operating system was a turning point in the vast field of computer programmes and software. The Court had ruled that API’s in this context as used by Google was not an infringement of copyright but constituted a transformative work (since it altered the original work by adding new concepts and parts different from the original) which could be accommodated within the conceptual framework of the fair use defence to absolve Google from any liability.
Developers can transmit their copyright by assignment, testamentary disposition or by operation of the law, as moveable property. However, it should be noted that for such assignment to have effect, it must be in writing.
The copyright of a developer would be infringed where any person who, without the licence of the developer, did or caused any other person to do, an act, the doing of which was controlled by copyright, as was held in Adenuga v. Ilesanmi Press. Furthermore, it was held in M.C.S., (Nig. Ltd. Gte) v. C.D.T. Ltd, that such infringement shall be actionable at the suit of the owner, assignee or an exclusive licencee of the copyright, as the case may be. And in any action for such infringement, all such relief by way of damages, injunction, accounts or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringement of other proprietary rights. The National Copyright Commission (NCC) is the body responsible for all matters relating to copyright, including administration, regulation and enforcement in Nigeria.
Third is Trade secrets. Although, this right is not statutorily provided for in Nigeria, software developers can take logical steps to safeguard confidential aspects of their software development cycle such as such as technical processes, source code, design documents, user data, etc. A 2023 report by GitGuardian, a leading cybersecurity startup that automates secrets detection, revealed that in 2022, 10 million instances of exposed secrets were detected in software development. Nigeria ranked 6th among the locations with the highest number of secret leaks.
Fourth is Trademarks, which is a symbol or a sign which differentiates the goods and services of one business from another one. The applicable law is the Trade Marks Act LFN 2004. Trademarks are required to be registered with the Trademark Registry, Ministry of Industry, Trade and Investment, and must be distinctive, not be deceptive or scandalous, and not identical to existing trademarks. While trademark will not apply to the underlying code, it can safeguard the name of a software product in the market. It can also safeguard the logos, icons and design elements associated with the software.
TO BE CONTINUED
CONTRIBUTORS
Tilewa Oyefeso – Partner
Emaediong Lawrence – Associate
DISCLAIMER
This article is for informational purposes only and does not constitute legal advice or establish a lawyer-client relationship. For specific legal advice, please consult a qualified legal professional.
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