From the control of various machines such as aircrafts, pacemakers, and other medical devices to the movie and video game industry, it is safe to say that software permeates modern society. Indeed, the global business software and services market size was valued at USD 389.86 billion in 2020[1], and it is expected to expand at a compound annual growth rate (CAGR) of 11.3% from 2021 to 2028.[2] This is due to the growing automation of business processes across several end-use industries such as retail, manufacturing, healthcare, and transportation. Nigeria is not left out of the software market: not only does Nigeria provide a massive market for software products, but it is also home to many talented software developers.[3]
While it might be stating the obvious, software products can be valuable intellectual property assets. As such, most jurisdictions grant legal protection to enable software developers reap the benefits of their sweat and investment. Under Nigerian law, software may be protectable through copyright, patents, trademarks, and trade secrets law.[4] However, there is an urgent need for clarity on the provisions of the laws, and perhaps even more than that: a more robust protection of software in Nigeria. This article briefly explores the inadequacy of Nigeria’s IP law in addressing the real challenges of its software industry and recommends an amendment of the laws for better protection of IP and promotion of innovation in Nigeria.
Several scholars agree that copyright provides adequate and substantial protection for software. Indeed, this is the main source of protection enjoyed by software in most jurisdictions, including Nigeria. Section 51 of the Nigerian Copyright Act defines computer programme “as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” It goes further to state that “literary work” includes computer programmes, which are also referred to as software. Thus, the term “computer programme” may include programs in any form, including those which are incorporated into hardware and perhaps even the preparatory design work leading to the development of a computer program.[5]
As is the case with creative works such as music and paintings, protection is automatic and free of charge as long as the work is original. Also, protection subsists during the author’s lifetime and 70 years after their death.[6] It should be noted that copyright protects the expression of an idea and not the idea itself. Therefore, in the case of software/computer programs, it is the program that is protected, and not its functionality. In other words, copyright protects only the literal aspect in computer programs. This is indeed its biggest weakness, and is perhaps responsible, to some extent, for why software piracy continues to pose serious threats. It is reported that the software industry in Nigeria loses N82 billion annually.[7]This alone indicates a failure of copyright (the main legal protection of Software) to achieve its goal.
At first sight, patent appears to offer a better protection for computer programs than copyright. But upon a closer inspection, one gets suspicious. The main advantage that patent has over copyright regarding the protection of software is the fact that patent protects the idea or concept underlying the invention. Plus, patent protects against copiers and independent inventors (note that independent creation is a complete defence to copyright infringement).
Under Nigerian law, patents may cover a wide range of inventions, so long as they meet the requirements of being patentable, new, resulting from inventive activity, and are capable of industrial application.[8] Although there is no provision regarding computer-implemented inventions under Nigerian law,[9]it is safe to say that patent law covers these as well, so long as they meet the requirements. Thus, in addition to copyright protection, a software invention may be protected under patent law in Nigeria if it satisfies the requirements.
One issue with relying on patent protection for software is the fact that software are generally cumulative and sequential innovations that result from and are adapted from other works.[10] As a result, a lot of software would not meet the requirement of being inventive. However, it would seem the bigger problem to be faced by software developers would be the fact that computer programs by themselves are not likely to meet patent requirements. Indeed, this is a problem in Europe as well where the European Patent Convention (EPC) (Articles 2(c) and 3) state that a computer program claimed “as such” is excluded from patentability.
Trademark may be indirectly used to protect a software invention by granting its owner an exclusive right to such software’s brand name, logo, slogan etc. Exclusive right to a trademark can be acquired either by use in Nigeria and/or registration of the mark at the Nigerian Trademarks Registry.[11] A trademark would give the owner of a software the exclusive right to use the mark in connection with the software and enable users to distinguish the inventor’s software from other software available in the market. It also promotes the brand and may prevent third parties from marketing their software under a confusingly similar name.[12]
Similarly, trade secrets may also be used to protect software invention. However, to get redress against unlawful disclosure of trade secrets, the major requirement is that owners of trade secrets must demonstrate that they have taken reasonable steps to maintain their secrecy. Relying on this option is not always realistic for software developers. Enforcement of one’s right in this circumstance is limited to situations where there is an agreement between the developer and the user. There is virtually no remedy against anyone who is not bound by such agreement. Perhaps this is why Jerry Pournelle wrote in 1983, “I have seen no evidence to show that … Levitical agreements — full of “Thou Shalt Nots” — have any effect on piracy.”[13] Some end-user license agreements (EULA)[14] carry such clauses. A EULA specifies in detail the rights and restrictions which apply to the use of the software.[15] EULAs have however been criticized for containing terms that impose onerous obligations on consumers. Thus, if Nigeria chooses to make a legislative intervention, it would be necessary to include provisions protecting consumers from such behaviour. Also, trade secret protection is not the best for standardized technologies that facilitate interoperability (e.g. smartphone communications technology) because standard-setting organizations require the nonconfidential exchange of technical information. Trade secret protection does not enable such information sharing.[16]
Even though the foregoing modes of protection may be used (individually or by a combination), they are still not sufficient protection for such an important 21st century product. And although copyright may appear to offer the best protection, certain important issues are left unaddressed under Nigerian law. For example, regarding the issue of exhaustion, it is unclear as to whether the first sale of a copy of a software by the rightholder or with his consent shall exhaust the distribution right of that copy. Also, it is necessary that an exception of the right to control further rental of the program or a copy thereof be expressly provided for.[17]
Another problem the absence of comprehensive laws regarding software in Nigeria brings is uncertainty as to whether authorisation of the rightholder is required where a user might need to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs. As it stands, it is unclear what the position of the law is with respect to reverse-engineering in Nigeria.[18] In the EU, it is expressly provided that decompilation is only legal without permission if you need to “achieve the interoperability of an independently created computer program.” Also, it is illegal to use decompilation even in such a case if you do not have a valid license to use the program (1a), or if the necessary information is already available (1b).[19]
In the absence of a more robust protection regime, inventors/developers of software in Nigeria might have to continue to rely on technical measures for the protection of their software against illegal use. The unfortunate effect of this however is the slowing down of innovation, as legitimate users and consumers who should benefit may be preempted from otherwise lawful uses. Even worse, Nigeria may not only miss out on the benefits of having a thriving software industry but may also suffer serious losses and consequences.
Conclusion
Nigeria, being the largest economy in Africa provides an attractive market for products in high demand, such as software. Should the country want to cash in on promoting innovation and competition in the tech industry, it must become more active. As software has become valuable intellectual property, Nigeria needs to strengthen legal protection for its stakeholders. Its copyright law, especially, should be updated taking the above observations into account.
[1] Grand View Research, Business Software and Services Market Size, Share & Trends Analysis Report By Software, By Service, By Deployment, By End-use, By Enterprise Size, By Region, And Segment Forecasts, 2021 – 2028, April 2021. Available: https://www.grandviewresearch.com/industry-analysis/business-software-services-market (accessed 26 August 2021)
[2] Ibid
[3] Yelizaveta Crofts, ‘Lagos is taking software by storm: Waking up to Nigeria’, Medium, 12 June 2018. Available: https://medium.com/@talent.io/lagos-is-taking-software-by-storm-waking-up-to-nigeria-1871aecc343c (accessed 22 August 2021)
[4] Bisola Scott, ‘Nigeria: Intellectual Property Protection for Software Rights In Nigeria’, Mondaq, 29 July 2019. Available: https://www.mondaq.com/nigeria/trademark/830390/intellectual-property-protection-for-software-rights-in-nigeria (accessed 22 August 2021)
[5] Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU? Harvard Law Review
Vol. 106, No. 5 (Mar., 1993), pp. 977-1073. Available: https://doi.org/10.2307/1341682
https://www.jstor.org/stable/1341682 (accessed 27 August 2021)
[6] See generally, First Schedule to the Nigerian Copyright Act
[7] Mary Imelda Obianuju Nwogu, The Challenges Of The Nigerian Copyright Commission (Ncc) In The Fight Against Copyright Piracy In Nigeria, Global Journal of Politics and Law Research Vol.2, No.5, pp.22-34, December 2014, citing E. Okwuke, ‘Nigerian Economy, loses 82b yearly to Software Piracy – Survey’, May 13 2014. Available at http://www.dailyindependenting.com accessed 14th Nov. 2014
[8] Section 1, Nigerian Patents and Designs Act, 1971
[9] A computer-implemented invention (CII) is one which involves the use of a computer, computer network or other programmable apparatus, where one or more features are realised wholly or partly by means of a computer program. See EPO Guidelines for Examination. Available: https://www.epo.org/law-practice/legal-texts/html/guidelines/e/j.htm (accessed 23 August 2021)
[10] Law Right, Is Patent the Best Protection for Computer Programs? 14 September 2016 Available: https://www.law-right.com/is-patent-the-best-protection-for-computer-programs/ (accessed 27 August 2021)
[11] See Nigerian Trade Marks Act, available: https://nigeria.tradeportal.org/media/Trade%20Mark%20Act.pdf (accessed 25 Aug 2021)
[12] Ibid at 2
[13] This is in addition to the fact that users rarely read the end-user-license agreements.
[14] This is a legal contract entered into between a software developer and the user of the software.
[15] Wikipedia, End-Use License Agreement, available: https://en.wikipedia.org/wiki/End-user_license_agreement (accessed 26 August 2021)
[16] Ania Jedrusik, Patent protection for software-implemented inventions,WIPO Magazine, February 2017 Available: https://www.wipo.int/wipo_magazine/en/2017/01/article_0002.html (Accessed 27 August 2021)
[17] See section 13 of the Nigerian Copyright Law
[18] This ought to be taken seriously given the ‘talent’ of the traders at Computer Village, Lagos.
[19] See EU Directive 2009/24/EC which controls the legality of reverse engineering in the EU.
I have a new software I want to patent in nigeria , which office should I go