Computer Programmes: Copyright or Patent?
Recently, a Nigerian financial technology company, (a company that utilises technology in the delivery of financial services) was acquired for $200 million, by a multinational company. The acquisition was possible because of the value of the acquired company’s intellectual property in its financial technology software.
It is therefore not enough to develop a software or application, it is paramount that the developer of the software takes steps to ensure his/her work is adequately protected and that the intellectual property rights (IPRs) are vested in him/her.
Computer programmes are made up of source codes. Writing of codes is a critical part of the development of computer programmes, before they can be integrated for use as software or applications on computers, phones and other digital devices. The source code is what transforms the software into a functional technology capable of application on computers and digital devices.
Codes are the living and valuable component of every software or application. So while a software may be publicly available, its source code is usually not provided to the public. This is true in the case of proprietary software, whereas, in the case of open source software, the source code is usually in the public domain.
The source code of a proprietary software is usually not in the public domain because of intellectual property rights considerations. With access to a software’s source code, a person may create a derivative work or modify the software. It is for this reason, that source code may be protected by trade secret.
While it is generally agreed that a software or a computer application is eligible for intellectual property protection, uncertainty often arises over the form of intellectual property protection that best suits computer software and applications and for which they are eligible under the law.
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The two contenders are copyright and patent or even both. Computer programmes are sui generis, they are written- this satisfies the copyright requirement of fixation and they are also capable of industrial application- this satisfies the condition for patentability.
Copyright and patent are available for computer software and applications that are contained or that help a computer or device function. A computer programme is eligible for copyright protection if it is original and if it is written (fixed in any definite medium of expression).
Computer programmes are protected as literary works under the Nigerian Copyright Act. Section 51 of the 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.
Patents can be validly claimed for computer programmes. Only inventions are patentable. For an invention to be patentable, it must be new, must result from inventive activity and must be capable of industrial application. Patents will only be granted where an invention has a practical or technical application.
When a code for a computer programme is written, even if the computer programme does not work well, or even if it has no technical application, it will still be protected by copyright. However, in the case of a patent, a computer programme will only be considered patentable when it is successfully applied in a technical manner.
A computer programme can therefore be protected by both copyright and patent. Copyright in an eligible work is automatic, no registration is needed and no registration fee is required to be paid, before protection can be claimed.
Whereas, in the case of a patent, a patent application must be filed and the requisite fees paid and a patent examination conducted to determine if the invention satisfies the conditions for patentability. Patent grants the patentee exclusive rights to make, import, or sell his/her inventions.
This right is exercisable for only twenty years, because a patent expires at the end of the twentieth year from the date of the filing of the patent application. Copyright in a computer programme vests the right owner with the exclusive right to reproduce the computer programme and make any adaptation of it, amongst other rights.
Copyright in a computer programme will subsist throughout the lifetime of the author and will expire seventy years after the end of the year in which the author dies. If the copyright is owned by a company, the copyright will expire seventy years after the end of the year in which the computer programme was first published.
A computer programme can therefore be protected by both copyright and patent.However, patents offer stronger legal protection as the scope of protection provided by copyrightis limited.
 Patents and Designs Act, section 1.