Computer software (also “program”) has, over the years, been protected under the Copyright Acts of the different countries of the world, and the rationale for that is that software is a literary work and can only be copyrightable. Copyright protections cover works of original expression of authorship in a tangible form. What this means, is that, an author’s idea is not copyrightable, but the expression of that idea can.
Copyright works to prevent others from unlawfully dealing, in any way, with the copyrighted work, which can only be done by the copyright owner. Such dealings can be making a copy of the work, selling it to others, licensing it or exercising any right which is exercisable by the copyright owner. And such copyrightable works are literary works, musical works, pictorial, graphic, sculptural works, audio-visual, sounding recordings etc. To this end, copyright protects the time, money, labour, intellect etc. invested into the copyrighted work and allows the author to eat the fruit of his labour.
On the other hand, Patent right is granted to inventors of works that are new, resulting from inventive activity and are capable of industrial application, or where the work is an improvement on a patented work but satisfies the requirement of novelty, non-obviousness, and capable of industrial application.
Patent right creates a monopoly over the patented product, barring all persons from inventing product(s) similar to the one subject of the patent protection. Patent does not only protect an expression of idea but also the idea itself. This is a striking dissimilarity between copyright protection and patent protection. Copyright protection does not extend to the underlying idea but the expression of the idea. This article looks into the different protections that can be afforded computer software.
The historical trace to the contention to obtain patent protection for computer software dates back to the 1970s when the U.S Supreme Court, in interpreting the U.S Patents Act, held that the only form of protection available for computer software was copyright protection. That although some limited aspect of the programs may be covered. The difficulty faced by the U.S Supreme Court here was precipitated by the inability of the U.S Patent and Trademark Office to properly classify the protection suitable for computer software. According to a writer, “this theory had its origins in bureaucratic concerns over workload, rather than in careful theoretical analysis. In the early 1970’s, the PTO anticipated a deluge of software applications at a time when it did not have the resources to hire skilled software examiners. Worry about workload and backlog motivated the PTO to lead the fight against software patentability”.
This way, the Court found itself grappling with what class of protection to place computer software which would be the most suitable for it. This went on for years until 1981, when the U.S Supreme Court, in Diamond v. Deihr, changed direction and upheld the eligibility for patent protection for claims drawn to a process for curing synthetic rubber. In other jurisdictions, like the United Kingdom, for example, the only protection available for computer software is Copyright protection. This extends to almost the entire European Union.
Back home in Nigeria, section 51(1) of the Nigerian Copyright Act (“the Copyright Act”) classifies computer program as a literary work, joining other league of nations in providing a limited protection for computer software.
IS COPYRIGHT PROTECTION ALL THAT THERE IS TO AFFORD COMPUTER SOFTWARE?
Computer software is a hybrid product. Aside the coding involved in software development, the technical logic employed in determining the functionality and the actual operation of a computer makes software more than a literary work, and restricting it to that class is a height of injustice capable of stifling innovation.
Software is comprised of textual code, artwork, structures, user input, sequence and organisation which differentiate it from other literary works. The technical logic of software enabling the functionality of a computer gives it its technological feature which should be patentable.
Literary works, according to section 51(1) of the Copyright Act, includes: novels, stories and poetical works; plays, stage directions; films scenarios and broadcasting scripts; choreographic works; computer programs; textbooks, treatises; histories; biographies; essays and articles; encyclopaedia; dictionaries; directories anthologies; letters; reports and memoranda; lectures; addresses and sermons; law reports excluding decisions of courts; written tablets or compilations.
A careful look at these copyrightable works would show that they are distinguishable from computer programs. A computer program stands out as a technical product capable of prompting a computer to function in a pre-determined way. According to Gregory J. Maier, “In intellectual property terms, software is a hybrid. Although software has its origin in writing, it also possesses functionality, a property that clearly distinguishes it from ordinary writings. To write software, is to formulate instructions for reconfiguring a collection of electronic logic gates and memory cells into a virtual structure capable of accomplishing a predetermined objective. Thus what begins intellectually as a form of coded writing ultimately operates as an electronic network. The same certainly, cannot be said of other types of writing, which are simply not capable of reconfiguring logic gates, but only of expressing intellectual concepts. Similarly, other types of electronic networks are not capable of existing entirely in the form of writings. Software is a hybrid because it both expresses intellectual concepts and has the power to physically implement them with the aid of a computer.” We cannot agree more with the view espoused by this eminent scholar.
It is unsatisfactory to limit computer software to copyright protection solely. While we cannot dispute the fact that certain features of software should be copyrighted, it is unassailable to state that there are also some other features of software capable of patent protection. Software can enjoy copyright, patent, trademark and designs protections, depending on the character of the software. Interestingly, the United States Patents Office (USPTO) has since been granting patent applications for computer software.
The technology ecosystem is evolving and stunning innovations are made by technology savvy individuals and such programs may be suitable for patent protection. It is high time countries that have been refusing to grant patent applications for computer software had a rethink and do the needful. Software can be suitable for patent protection, while some other features can be suitably copyrighted. To limit software protection only to copyright would work to hinder innovation. Secondly, these countries should as well review their laws to make provisions for patent protection for computer software. This way, innovators would be assured of proper protection for their products.
It is presumed that the world was sleeping on their innovation bed when copyright protection was preferred for computer software. But the world is awake now! The quality of innovations churned out on a daily basis requires that these innovative ideas should be properly secured.
Chinweolu Reuben Okafor is an associate at Udochi Iheanacho Partnership, a full service commercial & litigation law firm situate in Ikoyi, Lagos, Nigeria. His areas of practice are Intellectual Property, Information Technology Law, Data Privacy & Protection and Outsourcing.
 Diamond v. Bradley 450 U.S. 381 (1981) cited in Nancy F. DuCharme and Robert F. Kemp,Copyright Protection for Computer Software in Great Britain and the United States: A Comparative Analysis, 3Santa Clara High Tech. L.J.257 (1987). Available at: http://digitalcommons.law.scu.edu/chtlj/vol3/iss2/2. Accessed 08/03/2018
 G.J. Maier, Software Protection-Integrating, Patent, Copyright and Trade Secret Law: Journal of the Patent and Trademark Office Society, March 1987, Volume 69, No. 3, pages 152-165.
 450 U.S. 175 (1981)
 G.J. Maier, ibid
 The USPTO granted Merill Lynch patent for Securities Brokerage and Cash Management System in 1983, and also Amazon’s business method called “One Click Buy.” And many others.