Intellectual Property and Software Developers: The Legal Framework (Part 2)

THE THREAT LANDSCAPE

The legal framework designed to enforce Intellectual Property (“IP”) rights for software developers is crucial in fostering continued innovation. However, several factors can undermine the effective enjoyment of these rights, even within this established legal system. These challenges are explored below.

First is the presence of the digital environment which enables unauthorized use of IP to proliferate with ease, often going unnoticed until significant harm has been done. Second is the complex legal procedures involved in the enforcement of IP rights across jurisdictions. Thus, although IP has an international scope, it is still territorial in nature; therefore, matters like registration applications must be in accordance with the requirements of the various countries.

Third is the high costs involved in registering, renewing and enforcing the rights where there has been an infringement. The backlog of cases in Nigerian courts as well as the long timeframe for adjudicating same adversely affects the enjoyment of a developer’s IP rights.

Fourth is the priority developers place on creating products and rolling out innovation without a corresponding focus on implementing legal safeguards for their products. Additionally, developers often face the challenge of navigating an ever-evolving legal landscape, which requires them to stay abreast of continual changes and updates.

Lastly, mounting cyberthreats pose a fresh set of challenges to developers and compels them to develop innovative ways of safeguarding their creations and their IP rights. One of the latest prevention techniques in the identification of threats and risks is the use of Machine Learning (ML) and artificial intelligence (AI) to analyse vast amounts of data in real time and to identify patterns and anomalies.

BENEFITS OF REGISTRATION

Notwithstanding the challenges highlighted, registration of a software developer’s IP provides several significant benefits.

To start with, it ensures exclusive ownership and use of such property by the registered holder, safeguarding against copyright infringement, trademark counterfeiting, patent infringement, and trade secret theft. This exclusive ownership serves as proof of the existence of the intellectual property right and precludes other parties from dealing with the rights in a manner that is averse to the rights of the registered holder. Thus, where there has been an infringement of his IP rights, the affected developer has legal grounds upon which he may institute an action for the infringement, entitling him to damages, injunction, and any other remedy that the court may deem fit.

Furthermore, registration provides a safeguard against revenue decline. When a developer loses the rights over his intellectual property, he loses one of the fundamental hallmarks of his creative work as he can no longer claim ownership nor earn revenue from the affected intellectual property unless he recovers the rights. A report by Americas Quarterly shows that Brazil lost $1.7 billion in commercial value as 46% of installed software was unlicensed, highlighting the link between unregistered IP rights and loss of revenue across jurisdictions.