Last week we concluded our discussion on the End-User and Liability for Copyright Infringements on Social Networking Sites. This week, we will be looking at computer programmes and the test of originality for copyright protection against the background of the information age today.
In the present information age, many computer programmers keep developing new programmes for licensed or authorised users. From software such as Microsoft Office to web software such as WordPress 3.5, and mobile applications like Facebook mobile, 2go, Twitter apps for social networking, Opera mini app for internet connection for instance, there is need to protect these computer programmes and applications against infringements by unauthorised users.
Perhaps, to really appreciate the power of intellectual property law and how it can either protect or destroy your business, the very recent cases between Apple Inc. v. Samsung Electronics Co. is instructive.[1]

Therefore, for a computer programme to be eligible for copyright protection, it must be original. Originality is required if the intellectual property rights of a computer programmer is to be protected under the law. Such protection  is fundamentally important to among others, encourage innovation,  promote commerce and safeguard the economic interest of the computer programmer towards a sustainable technological advancement. 

So, the pertinent question is how does the originality test operate in relation to computer programmes for copyright to subsist in them as literary works?

Computer programmes have been categorised as literary works in Section 51 of the Nigerian Copyright Act 2004, the Interpretation section of the Act.  What amounts to “literary works” for the purpose of the Act is provided in the interpretation section of the Act. According to section 51, “literary work” includes, irrespective of literary quality, any of the following works or similar works –

              i.        novels, stories and poetical works;                     
             ii.        plays, stage directions, film scenarios and broadcasting scripts;
            iii.        choreographic works;
           iv.        computer programmes;[2]
            v.        textbooks, treaties, histories, biographies, essays and articles;
           vi.        encyclopedias, dictionaries, directories and anthologies;
letters, reports and memoranda;
          vii.        lectures, addresses and sermons;
         viii.        law reports, excluding decisions of courts;
           ix.        written tablets or compilations.
It is important to emphasise here that any of the itemised “literary works” above does not have to possess literary quality to enjoy copyright protection. “Literary works” is used in the wide sense to encompass all works capable of expression, and not confined to literature in its strict sense.
The Act provides that to be eligible for copyright protection it must be demonstrated or proved that sufficient effort has been expended on the making of the work to give it an original character.[3]The work must be marked by its individuality – that distinctiveness which results from the author’s or creator’s intellect.[4]
In the locus classicus, University of London Press v. University Tutorial Press Ltd,[5]we are already conversant with Lord Peterson’s definition of the scope of originality in the following terms:

“The word ‘original’ does not in this context mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with originality of idea but with the expression of thought and in the case of literary work with expression of thought in print or writing. The originality which is required relate to the expression of thought” [6]
Therefore, in relation to computer programmes or software, it is the expression of the ideas of the programmer or software developer in its definite form that makes the work original. In the words of Lord Pearce on originality, the programme “should not be copied but should originate from the author”.[7]
Apart from the source of the computer programme, is the literary merit also a determinant of originality? In the Australian case of Apple Computer v. Computer Edge Pty Ltd,[8]in which it was said that the purpose of literary works was for enjoyment,[9]the court declined from thinking that computer programmes could be protected in this way. The decision was subsequently reversed by the Full Court of the Federal High Court holding that the source programmes were protected by copyrights as new and original literary works and that the object programmes were protected in consequence as adaptations of the source programmes.[10]And according to Brennan J:
A literary work need not have literary merit…The words ‘literary work’, as Peterson J pointed out in University of London Ltd v. University Tutorial Ltd, ‘cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high’. A ‘literary work’, according to Davey LJ in Hollinrake v. Truswell, is a work ‘intended to afford either information and instruction, or pleasure, in the form of literary enjoyment’…The observation is not unduly restrictive. If the print or writing in which the work is expressed is conveys information of instruction, albeit to a limited group with a special knowledge, it is immaterial that the information or instruction is not expressed in the form of words, phrases or sentences.[11]
Next week, let’s talk about other relevant aspects of computer programmes and copyright protection. Catch you around!              

[1]Apple Inc. v. Samsung Electronics Co. Ltd. et al.” United States District Court, Northern District of California. Retrieved January 30, 2012 was the first of a series of ongoing lawsuits between Apple Inc. and Samsung Electronis regarding the design of smartphones and tablet computers; between them, the companies made more than half of smartphones sold worldwide as of July 2012.
[2] Emphasis mine.                
[3] S. 1(2) of the Copyright Act, Cap. C28 Laws of the Federation of Nigeria (LFN), 2004
[4] Cornish, W. R., Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, (4th ed), Sweet & Maxwell,   London, 1999, 8
[5] (1916) 2 Ch. 601
[6] See also Offrey v. Chief S. O. Ola & Ors(Unreported) Suit No. HOS/23/68; Decided on 23 June, 1969 cited in Odion J. O. and Ogba N.E.O., Op cit, 19; Ic & Ic (Directory Publications) Ltd v. Eco-Delta Nigeria Ltd  (1977) I FHCLR 65
[7] Ladbroke (Football) Ltd. v. William Hill (Football) (1964) All E.R. 465 at 479
[8] (1983) 50 ALR 581; (1984) FSR 246.
[9] A view which echoed the dictum of Davey LJ in Hollinrake v. Truswell (1894) 3 Ch 420, 429
[10] (1984) 53 ALR 225
[11] Computer Edge Pty Ltd v. Apple Computer Inc. (1986) 161 CLR 171, 201

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Nigerian Law Today

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