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.