INTELLECTUAL PROPERTY PROTECTION: Can I Protect My Software?

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INTRODUCTION



     Creating software isn’t a day's job. It is difficult. Thus, having a creative idea and design stolen is a nightmare. Seeing someone else’s business or company develop with your software ideas and designs is even more horrible than the worst nightmare ever. 

Even if you think your idea is small and your software is not taking you to grade 1 yet, it’s important to protect the intellectual property of your software.

Software in this context is not just the designs but everything that the world of Technology has to offer. Ranging from the applications built to help with our assignments and projects down to the games we play on our computers. Looking at all these great efficiencies that software has, there should be legal protection on software.

This article, therefore, examines the legality of software and the need for its protection under the Intellectual Property Law and what to do as a Software developer to protect your software creations.


WHAT IS A SOFTWARE?

     Generally, Software is a set of instructions, data, or programs used to operate a machine and execute specific tasks. In simpler terms, the software tells a computer how to function. It’s a generic term used to refer to applications, scripts, and programs that run on devices such as PCs, mobile phones, tablets, and other smart devices. 

It enables the user to interact with the computer. The coming together of hardware and software gives control and flexibility to this generation's computing systems, without them, computers would be of no use.

For instance, without your web browser's help, you cannot surf the internet, similarly no application can run on your computer without an operating system. Today we carry out various day-to-day activities using different types of software programs such as payment apps, Google Maps, an instant communication app, online food ordering apps, online shopping, etc.


WHAT IS SOFTWARE PROTECTION?

        Software intellectual property, also known as software IP, is a computer code or program that is protected by law against copying, theft, or other use that is not permitted by the owner. Software IP belongs to the company that either created or purchased the rights to that code or software. Any unauthorized use of it by someone else is illegal.


In other words, Intellectual property for software is computer code or software protected by law under either a copyright, trademark, trade secret, or software patent.



HOW DO INTELLECTUAL PROPERTY LAWS BENEFIT SOFTWARE PROTECTION?

       The primary function of Intellectual Property Rights (IPRS) is to protect and stimulate the development and distribution of new products and the provision of new services based on the creation and exploitation of intervention, trademarks, designs, creative content, and other assets. 


These laws are very important, especially to startups and Small and Medium size Enterprises as Intelectual Property Rights provide them with powerful tools to compete with incumbent or larger companies. Softwares are intellectual property and can be protected as such by Copyrights, Patents, Trademarks, and Trade Secrets. 



WHAT THE NIGERIAN LAW SAYS ABOUT SOFTWARE INTELLECTUAL PROTECTION



      Intellectual property is a type of intangible property created by the mind, such as inventions, works of art and literature, designs, names, or images. The software also fits into this category. Intellectual property law recognizes 4 types of intellectual property that can be protected. 

Let’s take a look at these types and how they apply to software IP.  Software inventions could be protected "indirectly" under Copyright, Trade Secret, Trademark, and Patent.

It was posited that the Copyrights Act CAP C28 LFN 2004 (hereinafter “Copyright Act”) defines literary works to include computer programs. – Section 51 Copyrights Act. It is therefore safe to conclude that computer software is registrable for Copyright protection.

Section 50(1) of the Copyrights Act 2022, provides that

"Subject to the Part II of the Act, no one shall knowingly circumvent a technological protection measure for works protected in the Act"

  And Section 50(3) defined "technological protection measure" as any technology, device, product, or component incorporated into the work which is designed to effectively prevent or inhibit the infringement of any copyright or related rights".

Subsection (3)(b) described "circumvent" in this context as avoiding, bypassing, removing, deactivating, decrypting, or impairing a technological protection measure.

Therefore the Copyright Act did not specifically or directly provide for protection for Software inventions different from the case of creative works like music, painting, etc, where the protection given are specific and free of charge as long as the work is original.



It should be noted that Copyright protects the expression of an idea and not the idea itself. Therefore in the case of software programs, it is the program that is protected and not its functionality. Copyright protects only the literary aspect of the Computer, and not specifically the unseen creation.

In addition to the indirect Copyright protection, a software invention may be protected under Patent law in Nigeria if it satisfies the requirement.

Trade secrets may also be used to protect software inventions. 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. 

Trademarks may also be indirectly used to protect a software invention by granting its owner an exclusive right to such software’s brand name, logo, slogan, etc. The exclusive right to a trademark can be acquired either by use in Nigeria and/or registration of the mark at the Nigerian Trademarks Registry.



NEED FOR BETTER INTELLECTUAL PROPERTY LAWS FIR SOFTWARE PROTECTION IN NIGERIA.



        Copyright under Intellectual Property Rights does not protect intangible creations. It is confined to the expression of an idea, principles, systems, methods, and so on fixed in any tangible medium or expression or any material form. 

This is the biggest threat to software developers in Nigeria. It was reported that the software industry in Nigeria loses 82 billion annually. Software privacy continues to face serious threats, this indicates a failure of the Copyright laws in Nigeria.

At first look, Patents appeared to be better than copyright, but looking closer one gets suspicious. Patents mainly protect the ideas of the invention and protect it against copiers and independent inventors. Most importantly, patent requirements are quite difficult to meet as it covers a wide space of protection. 

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.

Thus, there is need for a more robust and direct Intellectual Property Laws protecting inventors/developers of software in Nigeria or they might have to continue to rely on technical measures for the protection of their software against illegal use.



WHAT TO DO AS A SOFTWARE DEVELOPER TO PROTECT THE INTELLECTUAL PROPERTY OF YOUR SOFTWARE


     

        Protecting the software you have created is important because just like designs, art, novels, etc., the software is also born out of a creative idea or process that aims at solving a problem.

In a world where every business and individual depends on some kind of software for various purposes, the creator of this software needs to protect their invention or idea from theft.

Ways that could be achieved are:

1. Apply for Patents: 

As has been stated earlier, although the requirement for patent application proves strict, it still affords protection to the Intellectual Property of Software.

Thus, as an individual developer and if your software has a unique feature that sets it apart from your competition, you must go for a patent. A patent legally protects discoveries or inventions. It prevents others from making or distributing your invention without obtaining a license from you. 

2. You could also sign Intellectual Property Assignment Agreement with Developers

Get the developers of your IP assets to sign an IP assignment agreement that clearly states that all work produced during the project and within the company belongs to the company.  This will safeguard your IP information from being sold to a competitor and from personal use.

3. You could also create IP Awareness Among Employees

If your company’s IP is connected online or is stored in a system that is susceptible to cyber attacks, it’s important to take measures to stop that from happening. You can organize lectures on Intellectual Property Protection for your employees

4. You can implement high-level security measures within the IT framework of your company to ensure the security and safety of your IPs.

5. Confidentiality agreement could be signed by the developers and partners to ensure IP protection.

Confidentiality agreements that you can ask your team and partners to sign include:

Non-Disclosure Agreement (NDA)

Secrecy Agreement (SA)

Proprietary Information Agreement (PIA)

Confidential Disclosure Agreement (CDA)


CONCLUSION 

This article examines the legality of software and the need for the protection of software property by the Intellectual Property Law and what to do as a Software developer to protect your software creation. 

From the above analysis, It is obvious that although there seem to be a million and one Intellectual Property Laws safeguarding Software innovations,  there is still a serious need for more direct laws for the protection of Software Intellectual Property.


REFERENCES 

-Aneesha Kochar's "5 Ways to Protect the Intellectual Property of your software" (https://distantjob.com/blog/intellectual-property-software/)


- Peters Ifeoma's "Protection of Intellectual Property Rights in Computer Software: Copyright or Patent" (https://dnllegalandstyle.com/2017/protection-intellectual-property-rights-computer-software-copyright-patent/)


- Abby Braden's "Software" (https:www.webopedia.com/definitions/software/)


- "Software Intellectual Property: What it is and how to protect it" (https://cpl.thalesgroup.com/software-monetization/protecting-software-intellectual-property)


-Olusola John Jeged Law Firm.

- "Grand view Research, Business Software and services market size, share/Trend Analysis report"  by Software April 2021.


 AUTHORS:

OGO GLADYS AMARACHI

ELIZABETH UDOETTE

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