INTRODUCTION
In today's rapidly evolving digital landscape, the tech industry has taken the front burner in driving innovations and inventions, consistently setting new standards. Amid the excitement and momentum that often accompany the creation of new technologies, one crucial aspect that is sometimes overlooked is the protection of Intellectual property (IP). In the tech space, protecting IP is both a strategic priority and a legal necessity. For any company aiming to succeed in this highly competitive and globalized environment, effective IP protection is paramount. The type of IP protection required depends largely on the specific nature of the tech product and the particular elements that require protection. Typically, a combination of IP rights is necessary to ensure comprehensive protection for a product and its components.
This article explores IP protection in the tech industry, the legal framework that supports it, and best practices that tech companies can adopt to secure their innovations, thereby building sustainable competitive advantages.
SIGNIFICANCE OF IP PROTECTION IN THE TECH SPACE
The significance of IP protection cannot be overemphasized, especially in a today's rapidly evolving business environment. IP is essential not only for major players in the tech industry but also for emerging tech startups. Recognizing the importance of IP rights for new companies, the Nigeria Startup Act of 2022 (the "Act") includes provisions to protect the IP rights of startups. The Act emphasizes the role of the National Council for Digital Innovation and Entrepreneurship (the "Council") in ensuring robust IP protection to support the growth and development of tech startups.
Furthermore, the National Information Technology Development Agency (NITDA), which serves as the Council's secretariat, is responsible for promoting the commercialization and utilization of IP rights (IPRs). NITDA collaborates with various IP registries to facilitate registration and provide essential support to tech companies. Among the IPRs relevant to tech companies, the most prominent are copyrights, trademarks, patents, and trade secrets.1 In this article, we will explore the primary strategies that tech companies can adopt to protect their intellectual property from infringement.
TRADEMARKS
Trademarks are a crucial mechanism for tech companies to safeguard their intellectual property. A trademark acts as a unique identifier for a business, enabling it to stand out by fostering customer recognition. Registering trademarks is essential for tech companies, as it protects their logos, slogans, and overall brand identity. This protection helps prevent others from using similar marks, which could lead to confusion among consumers.
Once registered, a trademark enables its owner to take legal action in court if infringement occurs. Under the Trademarks Act ("TMA"), trademarks must be officially registered through the Trademarks, Patents, and Design Registry, which operates under the Commercial Law Department of the Ministry of Trade and Investment. A registered trademark is initially valid for seven years and can be renewed for additional fourteen year periods under the TMA.2 In the tech industry, registered trademarks provide exclusive rights to software and other tech products, distinguishing a company's offerings from others in the market. This promotes brand recognition and prevents competitors from using names that might cause confusion.
Building a company's brand as a valuable intangible asset begins with securing a registered trademark. It is essential for the trademark to closely align with the company's goals and risk profile. For this reason, tech companies are advised to consult an IP lawyer to verify the availability and distinctiveness of their chosen names for products or software. However, trademark registration is not an end in itself. It is a means to achieve strong brand value, ultimately creating an independent, invaluable intangible asset.
Therefore, tech companies should align their trademark and overall IP portfolio with key aspects of their business: product development and service offerings, growth and expansion, partnerships, and marketing and sales.
Procedure for Registering a Trademark in Nigeria
The following steps outline the process of registering a trademark in Nigeria:
- Conduct a Trademark Search: Begin by conducting a trademark search to confirm that the mark is not already in use or registered by another entity.
- File a Trademark Application: Submit a trademark application with the Trademarks, Patents, and Designs Registry.
- Examination of the Application: The application will be examined to ensure it meets all legal requirements and is distinctive.
- Publication in the Trademarks Journal: If accepted, the trademark will be published in the Trademarks Journal, allowing for any opposition to be raised.
- Registration: If no opposition is filed within two months, the trademark is deemed registered.
COPYRIGHT
Companies in the technology sector can utilize copyright to safeguard their intellectual property. In Nigeria, copyright protection is governed by the Copyright Act 2022 (as amended). According to the Copyright Act 2022, the following works are eligible for copyright protection: literary, musical, artistic, cinematographic, and audio-visual works, as well as sound recordings, broadcasts, musical compositions, and innovative computer software and programs. Copyright provides the proprietor with automatic and exclusive rights to any work that falls under the Copyright Act's provisions.3
These exclusive rights include right to reproduce, distribute, assign, license, and manage their creations. Notably, copyright protection does not require mandatory registration; the primary requirement is that the work must be original, showing clear effort in its creation and fixed in a tangible medium of expression. In the tech industry, copyright protection extends to original literary and artistic creations, providing creators with exclusive rights over reproduction, distribution, and public display. For example, a web application or website source code can be protected. If a tech company hires a developer to create an app or website, it is crucial to establish a contractual agreement specifying ownership of the work. This ensures the tech company retains copyright over the developed software.
Common examples of copyright-protected works include software programs (specifically the original source code), marketing materials (such as ad copy and jingles), entertainment content (like films and music), and online content (including podcasts, training videos, and articles). Properly managing and protecting these assets can significantly improve a tech company's value. Under the Copyright Act, assets like computer programs or software are classified as literary works and are thus eligible for copyright protection.
For a work to qualify for copyright protection, it must be original and fixed in a tangible form. In software development, this means investing sufficient effort in its creation and ensuring the code is stored in a fixed medium. Unlike some other forms of intellectual property, copyright protection is automatic upon the work's creation and fixation; no registration is required for protection.
To be eligible for protection, the author or creator must either be a Nigerian citizen or domiciled in Nigeria,4 the work must have been initially published in Nigeria.5 This protection also applies to works created during employment, commissioned works, assigned and licensed works,6 and works produced by citizens or residents of countries with copyright treaties with Nigeria.
Although copyright registration is not legally required, the Nigerian Copyright Commission (NCC) offers a voluntary copyright notification scheme, allowing copyright owners to notify the Commission of their works to help maintain an effective database of copyrighted material.
In Nigeria, software copyright protection lasts for seventy years following the author date. For corporate entities, this protection extends seventy years from the publication date.7 During this period, the rights holder has exclusive control over the reproduction, distribution, and adaptation of the software. Copyright grants both economic and moral rights- economic rights allow the copyright holder to derive financial benefits from the use of their work, while moral rights ensure the copyright holder is recognized as the creator.
PATENTS AND DESIGN
A patent is a legal safeguard granted for a novel invention or technological solution, whether hardware or software, developed by an individual, startup or multinational company. It provides the holder with exclusive rights, allowing them to prohibit others from making, using, selling, or importing the patented invention without authorization. However, it is important to note that not all inventions are eligible for patent protection. According to the Patent and Designs Act ("PDA"), an invention must meet specific criteria to be considered patentable. An invention must be new, it must involve an inventive step, meaning it should not be obvious to a person skilled in the relevant field and must be capable of industrial application, or an improvement on an existing patented invention.
Patents confer exclusive rights, and it prohibits others from using, selling, or importing the invention without authorization. While patent rights generally go to the first applicant to file for registration, patents are valid for a limited duration—typically twenty years—after which the invention enters the public domain and may be freely used by anyone.8
Procedure for Registering a Patent
- Filing the Application: An application for the grant of patent must be submitted at the Patents and Design Registry. According to the PDA, the application should include the applicant's full name and address, a clear description of the invention, any relevant plans or drawings, and specific claims that outline the scope of the invention. These claims apply to any technology product, including computer programs or software.9
- Payment of Fees: The application must be accompanied by the payment of prescribed fees.10
- Power of Attorney: If the application is submitted by an agent on behalf of the inventor, it must be accompanied by a signed power of attorney document.
- Examination by the Registrar: Upon receiving the application, the registrar conducts a formal examination to ensure it meets all statutory requirements. If the application complies, the registrar may grant the patent without evaluating its novelty, inventiveness, industrial applicability, or the adequacy of the invention's disclosure.
As stated, a patent is generally granted for a period of twenty years. During this period, the inventor or patent holder has exclusive rights to use, assign, or license the invention, preventing others from imitating it. This is particularly advantageous for technology companies, as it allows them exclusive control over their innovations, such as software applications. Notably, patents are subject to annual renewal in the form of annuity payments to maintain their validity throughout the twenty-year term.
TRADE SECRETS
Technology companies can safeguard their intellectual property by protecting trade secrets—valuable, confidential information that provides a competitive advantage. Trade secrets such as customer lists, proprietary information, processes, codes and computer programming systems may be protected if they hold commercial value and are kept confidential. To effectively protect these assets, technology companies should implement robust internal security measures and require confidentiality agreements from employees, partners, and contractors.
It is critical for technology companies to enforce non-disclosure and non-compete agreements with all parties who have access to sensitive information. Information should be disclosed strictly on a need-to-know basis, minimizing the risk of unauthorized exposure. By implementing these measures, companies can pursue legal action for breach of contract or damages if trade secrets are misused or leaked.
Protecting confidential information not only secures a competitive advantage but is also valuable for software or inventions that may not qualify for patent protection in Nigeria. Additionally, it serves as a strategic approach for retaining control over proprietary information tied to software applications and other technology assets.
To protect Trade secrets, technology companies can execute the following:
- Execute Non-Disclosure Agreements (NDA) with employees, partners and contractors to legally enforce confidentiality.
- Establish access control measures to restrict sensitive information to authorized personnel only.
- Conduct regular training on confidentiality and information security policies to reinforce best practices among employees.
- Perform periodic audits of information security practices to identify and address potential vulnerabilities.
BEST PRACTICES FOR IP PROTECTION IN NIGERIAN TECHNOLOGY COMPANIES
To effectively protect intellectual property, a company should implement the following best practices:
- Develop a Robust IP Strategy: Create a comprehensive IP strategy that aligns with the company's overall goals. This involves identifying the company's key IP assets, determining the most appropriate forms of protection, allocating resources for IP protection, and establishing ongoing IP management processes.
- Conduct Periodic IP Audits: Regularly review your IP portfolio to confirm that all valuable assets are adequately protected and that existing protections remain effective and relevant. This helps identify any gaps in coverage and addresses changes in the IP space.
- Implement Comprehensive Confidentiality Measures: Execute NDAs with employees, partners, and investors to maintain confidentiality. Establish access controls to restrict sensitive information to authorized personnel only. Conduct regular training sessions to reinforce the importance of protecting confidential information.
- Seek Adequate Legal Advice: Consult with IP lawyers who specializes in Nigerian IP law to ensure that your IP protection strategy is comprehensive and legally sound. Legal advice is essential for navigating complex IP regulations and protecting your rights effectively.
- Collaborate with Industry Partners: Engage with industry associations and collaborate with other tech companies to share resources and advocate for stronger IP protection measures in Nigeria. Industry partnerships can help foster a supportive environment for IP rights.
- Maintain Detailed Documentations: Maintain detailed records of the company's innovation process, including lab notebooks, development timelines, contributor agreements, and evidence of the first commercial use. Thorough documentation is essential for proving ownership and establishing priority in the event of disputes.
CONCLUSION
The aforementioned modes of protection grant technology companies exclusive rights to their codes, software and other technology products, including marketing brand, preventing them from unlawful exploitation by third parties. Notably, these protections can be maximized concurrently or selectively, depending on the unique characteristics of the software and technology involved. For optimal legal protection and advantage, inventors are encouraged to combine multiple forms of IP protection. However, navigating these options can be complex; thus, consulting an IP lawyer is highly recommended. Legal expertise can help identify the most effective forms of protection for specific software or technology products, ensuring the highest level of security and competitive advantage.
Footnotes
1 Section 31 of the Nigerian Startup Act 2022.
2 Section 23(1) Trade Marks Act Cap T13, Laws of the Federation of Nigeria 2004 (TMA).
3 Section 1 of the Copyright Act 2022.
4 Section 2 of the Copyright Act 2022.
5 Section 9 of the Copyright Act 2022.
6 Section 10 of the Copyright Act 2022.
7 First Schedule, Terms of Copyright, Copyright Act.
8 Section 7(1) Patents and Design Act (PDA).
9 Section 3(1) (a) of PDA.
10 Section 3(1) (b) of PDA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
