Being a developer of software is a great idea, but knowing where to draw your intellectual property rights is a greater idea. As a developer in Africa, intellectual property rights (IPR) are barely understood most especially when it relates to abstract concepts such as coding and programming. There are three major forms of IPR, these include: copyright, trademarks, and patents (The Trio). The Trio act as protective agents to your products. Let me take you down the hall of definition on what these concepts are about.
Copyright protects original works created in a fixed form including literary, dramatic, musical, artistic, and certain other intellectual works such as software. Bringing it home as a developer, for instance, if you develop any piece of software that determines the quality of concrete used to build a house, the law automatically imbues in you some form of right in this project developed.
Trademarks protects words, names, symbols, sounds or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods, the software developed for determining the quality of concrete is still a good example and you have decided to give the software an appellation: ‘Solid Bricks’, the trademark rights protected is the name: Solid Bricks.
Patents are rights granted to an inventor which allows them to exclude all others from making, using, or selling their invention for a certain number of years depending on the jurisdiction, for instance if the software that determines the quality of concrete used to build a house is a novel one, then the law will protect this idea for being novel.
For a software developer, one of the most important types of intellectual property is the copyright, which gives its owner the exclusive right to copy, sell, distribute or adapt a piece of work. Without copyrights – which are guaranteed by the laws– anyone could resell or modify your software at will.
As the possessor of a copyrighted software program, you have the special rights to duplicate, modify and share the software you have generated. Copyright laws protect your software’s source and object code, as well as original user interface elements. So, if anyone else tries to copy, sell or alter your software, they are in desecration of your copyright, and could be responsible for damages or legal penalties. The amazing thing about copyrights is that you do not need to file an application for registration of your copyright unlike the latter of trademarks and patents. Copyright is the most important, yet its repository of rights is instant; however to come under this protection you work must be original.
Notwithstanding, some users of your product may not know it is copyright fortified. How do you get your users to relate with this? An end-user license agreement does the job, informing users that the software is protected by copyright laws as well as intellectual property laws and treaties.
If you decide to sell your software product outright to another company, you will need to legally transfer the copyright. A software copyright assignment agreement documents that the software copyright has been assigned to another party, and lets you retain specific rights that you specify, such as trade secrets and background technology. This type of agreement also protects you from any future liability related to the software and releases you from any responsibility for providing training or instruction regarding its use. It is very important that a legal practitioner in your jurisdiction drafts this for you, as the nature of your rights are extremely jurisdictional.
Adedoyin Fadare, Esq
Specializes in Artificial Intelligence and Technology Law in Nigeria
Nice one, thanks for this info.
What of this scenario, where a developer writes a web app program for a client and after the whole work, the client didn’t close on the project neither accept the project conclusion but allowed the project to lie fallow for many years. What rights and document should the developer sent to client to guide against future request or shift the goal post?
Thank you, Bb.
To categorise your issue in the question:
Does a Developer have the right to safeguard himself from handling a project after a client rejects the same project?
It is important to mention that the only instrument that can give a succinct answer to the above is your legal contractual agreement (LCA). If there is indeed a LCA, then you will know your position outrightly. However, where you do not have a LCA, then it will mean that you are not bound to complete the project.
In fact, such a client should pay you for efforts expended on such futile project, this is what is termed in law: ‘Quantum Meruit’ which means a reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated in a legally enforceable contract.
The documents you can send to such estranged client is:
1. Letter of Cessation of Web Application Development.
2. Letter of Request for payment of Work Done.
Note: This is not legal advice and should not be categorised as one. Please contact your legal practitioner.
Hello Fadadayo,
Nice one, many lawyers acclaim IP Nigerian lawyers make an oversimplification of the law regarding the subject of discourse.
Software falls under computer programme and computer programme falls under the definition of literary works under section 51 CA. Now, computer programmes consist of object code and source code. The object codes are binary figures which make no sense to the layman until represented by way of source code. What developers do, is to obtain this object codes which has already been created and protected (copyright and patent) by the big tech copyright-holders ie Microsoft, etc. Now, your everyday developer simply copy and create a derivative of the original work. So they are actually infringers. Can an infringer claim infringement? No. But hold on, an infringer may claim infringement where he has added some sort of originality and independent thinking in expressing a new result in the coding.
Also, some developers copy from some open-license big tech guys like Linux, etc, under what we call creative commons or other types. These are licenses that allow for copying and derivations, with conditions that these guys may sell but must not put a bar on the use of what they have created. In other words, freedom is to continue. These school of thought are fighting against knowledge monopoly. This is a story for another day, but for now, let me leave you with the Aaron Shwartz incident.
These factors I have enumerated above have a long and strong effect over developers rights, license, and LCA. Let me stop here because I have no time, just stumbled on this mag via Linkedin. I am willing to talk more on this upon an interview or seminar or lecture, etc. But again, I am far away for now., except via virtual means. Most Nigerian so-called IP lawyers just wear that apparel without deep understanding and reflection on the law and global openings and issues surrounding it.
Hi Ifeanyi,
Thank you for your comments, it shows the in-depth of your knowledge. I totally agree with your position.
Truly the case of Aaron Shwartz is saddening.
However, in all these our intellectual property laws are outdated and would need an overhaul.
We should discuss, please send me a mail on fadare@thepalmagazine.com
Thank you once again, Ifeanyi