Emmanuel Agherario
The way software is used, designed, sold, and marketed raises different types of copyright challenges. Software Copyright is the legal right belonging to software developers/owners to copy and distribute their software as well as to prosecute anyone who uses the software in an unauthorized way and without permission.
It’s important to note that Copyright does not protect mere ideas or concepts. Only the expression of ideas or concepts in a fixed and tangible medium is protected. When it comes to software, that would mean the software code.
According to the Copyright Act of Nigeria a programmer automatically owns the copyright of any program or code written by them, which lasts 70 years after the creator of the software dies.
Software Infringement
Software copyright infringement can occur directly or indirectly. Direct copying of a source code or adapting a version of the original code by way of derivative work constitutes software copyright infringement.
Also, software copyright can be infringed without necessarily making a copy of the code. The mere use of an original computer program to create the same functionality in a new program would suffice as an infringement. Even if none of the original code is used, the copyright in the original program may in some cases be infringed. For example, using an original computer program for “inspiration” to create the same functionality in a new program.
Despite the legal protection, Software copyright infringement can be notoriously difficult to enforce. This was evident in the Google LLC v. Oracle America, Inc. case, a case where a U.S. Supreme Court gave a decision relating to the nature of computer code and copyright law. The dispute in that case centered on the use of parts of the Java programming language’s application programming interfaces (APIs) and about 11,000 lines of source code, which were owned by Oracle, Google admitted to using the APIs but claimed this was within fair use.
Oracle initiated the suit arguing that the APIs were copyrightable, seeking US$8.8 billion in damages from Google’s sales and licensing of the earlier infringing versions of Android. While two District Court-level jury trials were found in favor of Google, the Federal Circuit Court reversed both decisions, asserting APIs are copyrightable and Google’s use does not fall under fair use. Google successfully petitioned the Supreme Court to hear the case in the 2019 term, focusing on the copyrightability of APIs and subsequent fair use; the Supreme Court ruled in a 6–2 decision that Google’s use of the Java APIs fell within the four factors of fair use, bypassing the question on the copyrightability of the APIs. The decision reversed the Federal Circuit ruling.
The enormity of software infringement varies in different countries and Nigeria is not an exception. According to the Business Software Alliance (BSA) about 36% of all software in current use is stolen. As of 2011 software infringement rates in Nigeria stood at 82% with attendant opportunities for small businesses in the region of $250 million lost. As a result of this local Nigerian businesses have had difficulty competing with counterfeiters that have priced their goods below market levels and are then forced to cut jobs. there is also a loss of tax revenue and an increase in cost recovery which overall, affects the social well-being of the citizenry.
As a best practice, using an identity-based licensing solution, planting redundant code or Software as a Service (SaaS) protection, etc will ensure you always know who your end-users are, making it easy to prove copyright infringement.
Reference
- Copyright Act, Cap. C28, Laws of the Federation of Nigeria 2004
- www.mylawquestions.com/what-is-a-software-copyright.htm
- www.wikipedia.org/wiki/Software_copyright
- Google v. Oracle 593 U.S (2021)
- Vanguard News June 20, 20220 retrieved from <https://www.vanguardng.com/2012/06software-piracy-copyright-commission-takes-war-to-users/>
- First Annual BSA and IDC Global software piracy study report
Kindly send your articles for publication to [email protected]
