The rights associated with intellectual property are of immense importance to those involved in the development, exploitation and use of computer hardware and software, and information technology generally. [1] Legal remedies are available against those who unfairly seek to take advantage of the efforts and investment of someone else.

The intellectual property rights relevant to software programmes are patents, copyrights, trade secrets and trademarks. Patents, copyrights and trade secrets can be used to protect the technology itself. Trademarks do not protect technology, but the names or symbols used to distinguish a product in the marketplace. This means that these intellectual property rights accord different types of legal protection on software programmes.

Copyright protection

Works protected by copyright in Nigeria include, but not limited to literary works such as (computer programs, preparatory design material for computer programs and databases); dramatic, musical and artistic works; sound recordings, films, broadcasts. Copyright is protected in Nigeria by the Copyright Act [2], and under the Copyright Act computer programmes are classified to be a literary work.

Copyright is automatic upon the work being created and what copyright seeks to protect is the form in which the idea is expressed i.e., it protects the unique expression of ideas or thought and not basically an idea. The idea must be fixed in definite medium of expression and it must be ascertained that it’s the author’s own intellectual creation. In the relation to software programmes, copyright protects the unique expression of a software programme as described in the source and object codes. A software developer is guaranteed automatic copyright protection in his source and object codes if it is his original work and has been fixed in definite medium of expression now known or later to be developed from which it can be perceived or reproduced either directly or via a device. [3]

There are two right or benefits that accrue to a computer programmer with respect to his software programme, which are Economic Right and Moral Right. A software programmer enjoys both economic and moral rights in his source or object codes. Economic rights include exclusive rights to use, reproduce, and distribute the codes to the public and also to derive financial benefit from the use and exploitation of the work. Moral rights include the rights of the author to have personal link to have personal link with his intellectual creation, i.e., right to be attributed to his codes.

Patent protection

In many countries, there seems to be a variety of opinions as to whether or not computer software is an appropriate subject for a patent grant. The European Patent Convention, for example, contains an express provision that computer programs and other items of computer software, in particular algorithms, cannot be regarded as patentable inventions, to that effect (Article 52(2)(c)). [4]

In the United States, software is patentable if it is any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement.

It bears noting that while certain inventions may be eligible for patent protection, not all software-related inventions are patentable as they are required to satisfy certain conditions in order to qualify. [5] The Patents & Designs Act (herein referred to as “The Act”) regulates the grant of patent in Nigeria. The Act stipulates that for an invention to be patent worthy, such invention must be a new invention and constitute an improvement on a previously patented invention.

Software patent can protect features of a program that cannot be protected under copyright or trade secret law. For example, patents can be obtained for ideas, systems, methods, algorithms, and functions embodied in a software product: editing functions, user-interface features, compiling techniques, operating system techniques, program algorithms, menu arrangements, display presentations or arrangements, and program language translation method. [6]

Trademark protection

Trademark is a sign that is used to identify certain products or services as those produced by a specific person or enterprise. Although a trademark cannot protect software, it helps to distinguish those products and services from the similar ones produced by another and be used to protect and secure exclusive right to the software’s brand name, logo and slogan, internet domain names, product designs etc. For example, Apple, Dell, Goggle have their brand names or logo protected by trade mark.

Trade secret protection

The intellectual property right in software programs may also be protected by 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.

Although Nigeria does not have legislation for trade secret protection, but there’re certain measures that can be employed to keep a computer programme a trade secret. Actions such as restricting the trade secrets to only necessary persons, requesting the signing of non-disclosure agreements and taking steps towards preventing public access are measures that could be taken to protect the software application. [7]

The interesting part about trade secret is that, unlike copy right and Patent, software trade secret is perpetual and has no time limitation, which means that it can be maintained indefinitely as long as the secrecy is preserved and prevented from becoming public domain.