Intellectual property is paramount to the growth and development of an economy. This is owing to the fact that the economy is built on the ideas and inventions of its participants. Hence it would be doing a great disservice where there are no adequate measures for the protection of intellectual property and the enforcement of the protected intellectual property rights. Intellectual property rights are in the form of copyrights, patents, trademark protections and trade secret protections. Arising out the application of intellectual property is the development of technology. Nigeria, as an economy, has seen the rise in the development of its technological capacities owing mainly to the development of new and innovative software, automation of manufacturing activities, automation and computerization of banking and payment procedures among others. In 2016, Nigeria attracted more funding for technology start-ups than any other african country. The recent interest in Nigeria from Facebook’s Mark Zuckerberg and Google’s Sundar Pichai also highlights the fact that Nigeria is experiencing a technological boom. This technological boom implies a steady growth in the amount of computer programs and source codes being written, this valuable IP needs to be adequately protected to ensure maximum commercial success.
Copyright Laws of Nigeria
Copyright is the right and authority which a person enjoys over the expression of their creative ideas which gives them exclusivity over such expression and protection against improper use of such expression. Intellectual property rights are only available to ideas that have been expressed through any medium. This implies that intellectual property rights do not protect ideas but the works which serve as the original expression of such ideas.
In Nigeria, the primary copyright law is the Copyright Act, Cap C28, Laws of the Federation of Nigeria, 2004. Section 1 of the Act outlines the various categories of works which are eligible for copyright protection under the Act and they include: Literary works, Musical works, Artistic works, Cinematograph films, Sound recordings and Broadcasts. Literary works are further delineated in Section 51 of the Act to include irrespective of quality the following: Novels, stories and poetical works; Plays, stage directions, film scenarios and broadcasting scripts; Choreographic works; Computer programs; Textbooks, treatises, histories, biographies, essays and articles; encyclopedias, dictionaries, directories and anthologies. Considering the aim of this essay to explore the protection of source codes, this essay will limit itself to the examination of the relevant provision relating to the protection of computer programs.
Will Nigerian Copyright Law Protect my Source Code Internationally?
Ordinarily, the protection offered by the Copyright Act is only for works created or registered in Nigeria. However, by virtue of the provision of section 5 of the Copyright Act, foreign works are also eligible for protection in Nigeria. This protection would be granted if at the time of the publication at least of one of the authors of the work is a citizen or a body corporate domiciled in a country which is a party to an international agreement which Nigeria is also a party to. In addition to this, protection is also afforded to works published by the United Nations or any of its specialized agencies, the African Union or the ECOWAS.
Relying further on the principle or reciprocity contained in Section 41 of the Act, which provides that where any country which is a party to the same international agreement as Nigeria, and the Minister is satisfied that the country in question provides protection for copyright works under this act, the Minister may by order in the federal gazette extend the application of this act to works from citizens or bodies corporate from those countries. Nigeria is a party to the Berne Convention alongside 176 other countries. Additionally, Nigeria ratified four other WIPO intellectual property treaties particularly the WIPO Copyright Treaty; a special agreement under the Berne Convention providing for the protection of works in the digital environment including Computer programs in any mode of their expression and Compilations of Data and Databases; which came into force in January 2018. The effect of this is that works protected in Nigeria can be protected internationally in countries where these treaties have been ratified and given effect, and Nigeria can reciprocate such protection.
What’s more to Copyright Law in Nigeria?
A computer program is defined in Section 51 of the Act to mean “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” Computer programs which unarguably includes the source codes are instructions written in programming languages or any other language understandable by the computer, which upon execution, makes the program carry out certain functions, produce specified results or act in a predetermined way. Computer programs are deemed as literary works in Nigeria and not “Patentable” inventions primarily because the programs are written before they are executable. In essence, the writing of the source code in the programming languages required is the expression of the idea which is fit for the protection of the copyright law in Nigeria.
Computer programs and other literary works are only eligible for copyright protection where sufficient effort has been expended in the making of the work to give it an original character and the work has been produced in an ascertainable means of expression now known or later to be developed, from which the work can be perceived, reproduced or communicated directly or with the aid of any machine or device. Source codes which have met this requirement are granted protection under Section 1 (2) and 2 of the Nigerian Copyright Act.
In answering a vital question, the act clarifies in Section 10, that where the literal work is made by the author in the course of his employment by the proprietor of a newspaper or similar periodical under a contract of service as is so made for the purpose of publication, the proprietor shall be the first owner of copyright in the work. Applying the logic to a computer program and source codes, where the source codes are written in the fulfillment of services under a contract of employment, the proprietor or the employer shall be the first owner of the copyright in the source code, except an agreement is expressly made to the contrary. Where the source code is commissioned by a person who is not the author’s employer, under a contract of service, the copyright shall remain vested in the author, except an agreement is reached in writing to the contrary.
Benefits of Copyrighting your Source Code
The scope of the protection afforded to computer programs and the source code is contained in the provisions of the Copyright Act. Section 6 of the Copyright Act provides for the rights and authority granted to the holder of the copyright which includes the right to reproduce the work in any material form; publish the work; produce, reproduce or publish any translation of the work; distribute to the public for commercial purposes, copies of the work by way of rental, lease or a similar agreement; among others. Ultimately the copyright holder has exclusive rights over the software and he is at liberty to do as he wishes with it; including the right to make a commercial profit from it, leasing it out or licensing its use by another entity.
Remedies for Infringement
The copyright of the author would be infringed where, among other things, a person without a license from the author carries out any activity which is controlled by copyright with the work of the author. This also includes making a public exhibition of the copyrighted work, distributing by way of trade, hire or leasing the works of the author over which copyright subsists. Since copyright is conferred on the proprietary interest of an author in his work, the remedies for infringement include that available for the infringement of proprietary rights. The author of an infringed copyright has the right by virtue of the provision of Section 16 of the Copyright Act to make an application to the Federal High Court for reliefs in form of damages (general and special damages where applicable), injunctions, an account of profits among others.
It must be noted that it would not amount to an infringement when any of the acts contained in section 6 of the Copyright Act is done by way of fair dealing for the purposes of research, private use, criticism or review subject to the condition that if the use is public, it must be accompanied with the acknowledgment of the author and the work.
What happens if the offender is found guilty?
Criminal liability also arises on the instance of the infringement of a work which copyright subsists, unless it is proven satisfactorily before the court that, at the time of the act, the person had no reason it amounted to copyright infringement. Where one is found guilty of an infringement, the person is liable to a conviction of an amount not exceeding 1000 naira for every copy dealt with or to a term of imprisonment not exceeding five years or even both.
Registration Requirements and Process for Filing Copyright
In Nigeria, once the work is created, the author automatically enjoys copyright protection over the work. The work need not be published or even registered before it can be duly protected under the Copyright Act. However, the registration of a work with the Nigerian Copyright Commission has its advantages which include the provision of an independent source of verifying data relating to the author and the work, also serving as prima facie evidence of copyright before the court among others.
Registration with the Nigerian Copyright Commission can be done both physically and through an online portal. To register a work for copyright, the applicant will need to submit to the Nigerian Copyright Commission:
- a completed registration form,
- two copies of the work and
- evidence of payment of the prescribed fee.
For a physical application, the applicant can obtain the registration form at the Commission’s office. For an online application, will be required to create an account and fill in the necessary details on https://www.eregistration.copyright.gov.ng/home/createaccount. After the account has been activated the applicant can fill the registration form by clicking on “Register A New Work” on the dashboard.
The applicable fees for the registration of the work can be paid in Naira or Dollars. They are listed as they are gotten from http://www.eregistration.copyright.gov.ng/ncc/help:
- Copyright Registration Fee/registration of transfers ₦10,000 $60
- Issuance of a Certified true copy of Certificate ₦5,000 $30
- Issuance of a Certified true copy of form ₦5,000 $30
- Corrections & Changes in submitted data ₦5, 000 $30
- Issuance of a certified true copy of a Work (Paper-based only)
- Works below 50 pages ₦5,000 $30
- 51 – 100 pages ₦7,500 $40
- 101 – 200 pages ₦10,000 $60
- Above 201 pages ₦15,000 $90
For more information regarding the payment methods and procedure, the link provided above can be followed. It takes about sixty days after submission for the processing of the application and fees payable for any transaction are not refundable.
How long will Source Code Copyright last?
Considering the classification of computer programs and source codes as literary works, the Copyright Act through the joint provisions of Section 2 and the First Schedule provides that the copyright would subsist till 70 years after the death of the author and if it is owned by a body corporate or the government, it will subsist for 70 years after it was first published. It also provides that the copyright would subsist for 70 years after it was published if the work was published anonymously or under a pseudonym. Where the author becomes known, the term would be calculated according to the first process mentioned.
Where exactly do I apply to Copyright Source Code?
In addition to the online procedure described above, physical application for registrations can be made at the Commission’s offices. The address for the Commission’s office in Lagos, being the commercial capital of the nation is provided below.
114 Brickfield Rd, Ebute Metta, Lagos
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