By BOLUWATIFE DANIEL-ADEBAYO

In today’s society, technology has taken an advanced role in making lives easier. With the ever-growing need for technology, there is a necessity to safeguard the programs embedded in them. A “computer program” is a set of statements or instructions used directly or indirectly in a computer to bring about a certain result.

The Nigerian Copyrights Act (CA) and Patents and Designs Act (PDA) attempts to provide an umbrella for the protection of computer programs but they both fail to address their intrinsic nature. Computer programs have a dual nature as both creative expressions and functional processes. This makes it complicating to categorize them under a specific type of intellectual property right (IPR).

The CA safeguards computer programs as literary works, with the emphasis being on protecting the expression of the ideas and not the functional nature of the idea. This inherent nature of copyright presents a direct obstacle, given the fact that a programs’ value frequently resides exactly in its functionality and not in its expressive elements.

In the United States, the courts have adopted a test called the abstraction-filtration-comparison test to prove non-literal copying of computer programs. This test strives to separate protectable expression from unprotectable ideas at each level of abstraction of a computer program. The court firstly analyses the program by breaking down each level of the build-up of the program. It then filters the parts that are expressions (copyright protected) from the ideas (copyright ineligible) on each level. The parts that are thus protectable are now compared with the infringing program to determine infringement.

Patent protection on the other hand comes with its own list of problems. Under the PDA, Computer program is protected if it satisfies the basic requirements of patentability. However, a computer program is a combination of mathematical algorithm in form of codes. Mathematical algorithms do not meet the requirements of patentability set by the PDA as they cannot be used as a subject matter of a patent application. As such, using Patent to protect computer programs could also be invalid.

Learning from the European Union, they adopted a ‘technical character’ approach to patenting computer programs. This approach gives computer programmers and programs developers the ability to protect their inventions as long as they provide a new technical solution to a technical problem. What is thus being protected by the patent application is the additional technical means that a skilled person has used to solve the technical problem. Examples of this are; enhancing or analysing digital audio, image or video, e.g. denoising, detecting persons in a digital image, estimating the quality of a transmitted digital audio signal; separating sources in speech signals; speech recognition, e.g. mapping a speech input to a text output, optimising load distribution in a computer network.

Nonetheless, there are other IPR mechanisms that can be utilized to protect computer programs and promote innovations and creativity. Graphic User Interface (GUIs) can be protected by industrial designs. Trade Secrets could be used to protect confidential business information that is not guarded under other IP platforms.

Confidentiality agreements can be drafted that would safeguard the company from having their source code leaked by an employee. Programmers can insert license restriction clauses in their licensing agreements. These restrictions can protect them from potential infringement. Contractual measures can also be put in place to help protect the computer program from copying and infringement.

Emerging technologies have strained existing paradigms and as programs technologies evolve, legal systems are continuously faced with the problem of balancing the promotion of innovation with competition concerns. In this regard, it will be crucial that Nigerian IP laws are reassessed to accommodate technological advancement whilst still maintaining the underlying worldwide principles of IP. By so doing, the country can exploit the opportunities that the advancement brings.

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