Malan Moses Faya enjoys applying law not just to solve problems but also creating value for clients in innovative ways. His interests in Intellectual Property (IP) and Information Technology (IT) help him do exactly that.
IP for Programmers.
*What is Intellectual Property?*
I know that many if not all of us, know what intellectual property(IP) is, however just to refresh our memory
According to WIPO, Intellectual property refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
These IP’s as describe above are protected in law by any of the following, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish. Since we know what IP means, what does it mean when we say IP for programmers?
+234 703 869 0044: If a programmer or software developer is an individual that writes/creates computer software or applications by giving the computer specific programming instructions, then IP for programmer or developers mean how such software or application which is created are protected under our laws (copyright, patent, trademark and trade secret)
+234 703 869 0044: Note: For the purpose of our discussion, programmers and developers shall all be referred to as software developers.
Why is Intellectual Property important for Software developer?
IP is important for the applications or software created by software developers because, since the creation of software is valuable to individuals, start-ups, and businesses. The law is the best way to protect such software. To use the applicable laws as protection, software developers, individuals and businesses need to treat software as intellectual property.
When you treat your software as intellectual property, you have more control over who gets to use it and how it gets to the public. Otherwise, people might use it without permission, and you'll lose the chance to get paid when people use your software. In extreme cases, you might lose the right to use the software you created.
The next thing we are going to look at is how do you go about protecting an application or software.
As a programmer who has been able to put down his or her idea into a form or process, and such person is thinking of protecting what they have created, either a software of an application. Copyright and Patent offer legal protection. Each of these option covers different parts of IP protection for. Some people prefer one or the other, while others go for both. Alternatively, you can choose to treat your software as a trade secret. Deciding what to do is an important step in protecting your software.
Before I forget Trademark is another option of IP protection, but trademark does not protect the developers IP software code. What it protects is the name of the software, or a symbol to be used to advertise the software. Trademarking a software's brand name is a good way to keep others from marketing a product under a confusingly similar name.
Protecting Softwares through Copyrights
In Nigerian Legal System, Intellectual Property Protection for computer software can come under Copyrights registration. Section 51 of the Copyrights Act CAP C28 LFN 2004 (Copyright Act) defines literary works to include computer programs. +234 703 869 0044: It is therefore safe to say that the act calls computer software’s or programs "literary works" and that software is registrable for Copyright protection. Note: Copyright protects the unique expression of a software programme as described in the source and object codes.
+234 703 869 0044: The good thing about copyright is that a software developer is guaranteed automatic copyright protection in his source and object codes if only such is his original work and has been fixed in definite medium of expression.
+234 703 869 0044: To enjoy copyright protection, according to the Copyrights Act of Nigeria, the author or inventor must
a. Be a citizen and or domiciled in Nigeria.
b. His work must have been initially published in Nigeria., this also includes works made in the course of employment, commissioned works, assigned and licensed works, and works made by persons who are citizens or domiciled in countries that are parties to treaties to which Nigeria is a signatory.
Even though once a software developer work is original and it has been written, there is no need to register it to have copyright protection. It is already automatically protected based on the Berne Convention on copyright.
But for the purpose of evidence, it is encouraged that the copyrighted work is also registered so that there can be a certificate to easily prove ownership.
[11/3, 5:04 PM] +234 703 869 0044: For the purpose of copyright registration, the Nigerian Copyright Commission (NCC) established a voluntary copyright notification scheme for owners of copyrights to notify the Commission of its creation and existence in order to maintain an effective databank of their copyrighted works
[11/3, 5:06 PM] +234 703 869 0044: The benefits a software developer enjoys are both economic and moral rights in his source codes.
Economic rights include exclusive rights to use, reproduce, and distribute the codes to the public and also to make derivative works thereof.
Moral rights include the rights of divulgation, attribution and retraction of the codes.
Protecting Software through Patent.
It is important to note that unlike copyright which protects only the software codes, patent protects the whole invention which include the method and processes used in developing the software, once such method and processes have been fixed in a tangible format. Software can be protected under patent law (Patents & Designs Act) in Nigeria, only if it satisfies the basic requirements of patentability such as:
a. It must be a new invention
b. It must constitute a non-obvious improvement on a previously patented invention
c. it must be capable of industrial application
[11/3, 5:13 PM] +234 703 869 0044: Once all the above requirements are met an application can therefore be made to the Registrar of Patents & Designs.
This is to say that not all software’s is eligible for patent protection
[11/3, 5:15 PM] +234 809 377 3143: Please can I ask this question!
Where a software developer created a work and failed to register or protect same under the Copy Right Act and someone else discovers it and published and registers it does the right to that work enure to the later person who who published and registered it or the developer?
+234 703 869 0044: Once an applicant has satisfied all the required condition, the application will be examined by the registrar merely to ascertain formal compliance and once the application satisfies the statutory requirements the registrar is likely to grant the patent without enquiries as to its novelty, inventiveness and industrial applicability or whether the specification sufficiently discloses the invention. This is because Nigeria does not have a functioning examination system
+234 703 869 0044: Protecting Software through Trademark Protection
+234 703 869 0044: A trademark is a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark whether with our without any indication of the identity of the person, and means, in relation to the certification trade mark, a mark registered or deemed to have been registered under Section 43 of the Trademarks Act
[11/3, 5:24 PM] +234 703 869 0044: Prior to marketing software, it is important for software developers to take adequate steps to create, develop and protect the brand name for the software. Although a trademark cannot protect software, it may be used to protect and secure exclusive right to the software's brand name, logo and slogan, i.e., software titles. Exclusive right to a trademark can be acquired registration of the mark at the Nigerian Trade Marks Registry. Upon registration, the proprietor's right in a trademark subsists for 7 years and is subject to renewals at 14 year intervals. A trademark gives a proprietor exclusive right to use the mark in connection with the software and enables 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.
[11/3, 5:27 PM] +234 703 869 0044: Protecting Software through Trade secret
[11/3, 5:29 PM] +234 703 869 0044: lastly software developers may also be protected as trade secret by preserving confidential information, processes or codes of a software which have commercial value and which accords the owner a competitive advantage over competitors in the market. In addition to copyright and trademark protection, this mode of protection is recommended for software that is not eligible for patent protection in Nigeria, or as a commercial strategy to withhold related proprietary data for the application of the software.
[11/3, 5:31 PM] +234 703 869 0044: Trade secret protection is not a statutorily recognized right in Nigeria; however, it is recognized and enforceable under the common law. Owners of trade secrets in software have to take reasonable measures to maintain their secrecy. These measures include signing non-disclosure agreements, restraining employees' access to it and taking steps toward preventing access to the public
+234 703 869 0044: It is important to note that a trade secret can last for as long as you want. However, unless someone discovers your secret by what the law construes as “fair means” your trade secret will last forever. In a case where an individual or organization independently discovers a trade secret similar to that of another individual or organization, such individual or organization is entitled to continue its use of same and no legal action will lie against them.
+234 703 869 0044: In concluding it is important to understand that software has been remarkably difficult to classify as a specific form of IP subject matter because its dual nature presents particular difficulties for those trying to draw analogies with existing legal categories. This is why there have been attempts to classify it as subject to copyright, patents or trade secrets and even to a sui generis software right. It is indicative of the complexity of the debate that it has gone on for years.
+234 703 869 0044: But what makes the legal classification of software so difficult? The problem may lie in the fact that software is not a monolithic work but that it has several elements that could fall into different types of IP protection. If we define software as a set of instructions to a computer that bring about a certain result, then the manner in which those instructions are expressed should give us an idea about the type of IP protection that applies. These instructions are initially expressed as source code lines of instructions in a computer language. As source code is expressed in written form, it is therefore logical to define software as being subject to copyright protection as a literary work.
+234 703 869 0044: However, software is not only the source code that operates in a computer; software has to be compiled into object code machine-readable instructions that can be directly executed by the computer. This translation usually has no bearing on the type of protection awarded to software because the object code is a direct result of the source code, and one can argue that its legal status should be indistinguishable from that of source code.
+234 703 869 0044: Finally, most software developers always ask me that between copyright and patent which is the appropriate protection and less stressful having in mind that copyright is for 70 years while patent is for 20 years
I always tell them that there is no one answer for all really. It depends on the software to be protected.
Copyright is never a replacement for patent because copyright does not protect the inventive functionality of your software but only protects the written source codes. Whereas, patent protects the functionality, stopping anyone from coming up with the same software invention with or without copying.
So copyright is good for protecting the original computer languages but it's useless when it comes to protecting what the software does.
+234 703 869 0044: As stated above the various modes of protection would give a developer exclusive rights to use its codes and software including its marketing brand, and prevent unlawful exploitation by third parties. The various modes of protections may be used concurrently or selected based on the uniqueness of the software and intended business objectives.
For maximum legal protection and benefit, it is recommended that a developer utilizes more than one form of protection.
+234 703 869 0044: Finally, It is hoped that I have been able to share a little insight on the basics of IP and how it applies to software developers in other to secure the effective protection of their software from infringement, which leads to loss of credit and future income.
Thank you Sir @+234 703 869 0044 for that enlightening session.
Please if you have any questions, send them in
Where a software developer created a work and failed to register or protect same under the Copy Right Act and someone else discovers it and published and registers it does the right to that work enure to the later person who who published and registered it or the developer?
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