The current high utilization of software in Nigeria has brought to the fore the importance of software protection in Nigeria. Software, being a valuable product of intellect is protected under the intellectual property law in various countries and Nigeria is no exception.
There are four ways by which Software can be protected as intellectual property, they include; Copyright, Patents, Trademark, and Trade Secrets. These four methods would be briefly discussed in this article.
PROTECTION OF SOFTWARE BY COPYRIGHT
The Nigerian Copyright Act (Here In referred to as NCA) classifies Software under literary works as works eligible for protection. According to section 1(2) of NCA, it specifies the mode of eligibility for a software to become protected.
The first and foremost requirement for software to become eligible is to have a sufficient degree of originality, that is, a sufficient degree of effort has to be expended on the work to make it original. Another requirement which must also be met under Nigerian laws is that it must be fixed in any definite mode 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 as stipulated by section S.1 (2)(b) of the NCA. By this, it means that before the software can be eligible for protection, apart from having a sufficient degree of originality, it must be fixed in a definite medium of expression.
Section 39 of the Nigerian Copyright Act includes computer programmes as part of literary works registrable under the Act.
To register copyright in Nigeria, the owner, i.e. the inventor must be a citizen of Nigeria or must be domiciled in Nigeria or his work must have been initially published in Nigeria.
The owner of a copyrighted work has certain exclusive rights, such as the right to create a derivative or modified version and distribute copies to the public by license, sale, or otherwise. Anyone exercising any of these exclusive rights without the permission of the copyright owner is an infringer and subject to liability for damages or statutory fines.
The body in charge of copyright registration in Nigeria is the Nigerian Copyright Commission (NCC). Software, having qualified as a literary work can be protected by registering it with the NCC.
PROTECTION OF SOFTWARE THROUGH PATENTS
The software can also be protected under intellectual property through patents. Patents protect the whole software program from imitation. Like copyright, there are requirements before work can be patented. Before software can be patented, it must be a new invention or an improvement upon a previously patented invention.
However, whether it be new or an improvement on a patented invention, it must be capable of being applied Industrially, i.e. it must be capable of Industrial application.
Once the foregoing conditions are established, a work or invention qualifies for a patent grant. An application for registration can then be made to the appropriate government agency in charge of the patent’s registration, which is the Trademarks, Patents and Designs Registry, Commercial Law Department, Federal Ministry of Industry, Trade and Investment.
Differences between Patents and Copyright protection in Nigeria
The major difference between a patent and copyright in Nigeria is that while a patent can protect a computer software program from plagiarism, software copyrights have a more limited scope and will be only able to guarantee the protection of the software codes. However, Patents last for twenty years while copyrights last for seventy years after the death of the owner.
PROTECTION OF SOFTWARE THROUGH TRADEMARK REGISTRATION
The software itself cannot be protected through trademark protection. However, its titles such as Brand name, Brand color, Slang, Brand logo e.t.c. can be protected through a trademark.
The software titles are used to identify and distinguish a particular brand from its competitors.
For a trademark to be duly considered for registration, it must be distinctive, as mandated by Section 9 of the Trade Marks Act.
In registering a trademark, an applicant must furnish the name, address, email & telephone, and name of the trademark or device mark and the class in which it is to be registered under the NICE international classification of goods and services.
Trademarks rights are territorial, so registration must be made to each country for which protection is sought.
Once a particular trademark has become associated with a particular brand, it may acquire a distinctive character through use and the owner is entitled to sue in case of any infringement. However, if such a trademark is not registered, infringement action against such infringer can only be done through passing off action.
Trademarks initially registered for 7 years, after which it can then be renewed for a revolving period of 14-years, as long as the trademark remains in use.
The Black’s Law Dictionary defines trade secrets as “a formula, process, device or other business information that is kept confidential to maintain an advantage over Competitors; Information including a formula, pattern, compilation, program, device, method, technique or Process“.
Since not all inventions can be protected, Trade Secrets come in handy to protect these inventions from being imitated or stolen. Inventions such as Scientific processes’ food recipes and a whole lot cannot be patented.
Under international law, three factors are used to define a trade secret following Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). These factors are as follows:
- Not generally known to the public.
- Confers economic benefits on its holder because the information is not publicly known.
- Where the holder makes reasonable efforts to maintain its secrecy.
A Trade Secret is an important but invisible component of a company’s intellectual property. A trade secret is not deemed to exist unless its purported holder takes reasonable steps to maintain its secrecy. This can be protected by legal and technical measures. Legal measures include Non-disclosure agreements, Work for Hire, and non-competition clauses.
Trade secrets are also protected by restricting the key information to a few trusted individuals. Famous examples of products protected by trade secrets include Chartreuse Liqueur and Coca-Cola.
Protecting software through legal measures is essential to avoid infringement of one’s software. As said above, there are various aspects under Intellectual property through which one can protect its software.
Copyright protects the codes of the software and can last for 70 years after the applicant’s demise, and it is registered with the NCC.
Patents protect the whole software. However, it lasts for 20 years, unlike copyright. Trademark registration is also another means of protecting Software. However, a trademark protects the brand instead not the software application or processing itself. Both patent and trademark are registered with the Trademarks, Patents and Designs Registry, Commercial Law Department, Federal Ministry of Industry, Trade and Investment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.