In creating or launching a digital product into the market, a programmer may either opt to build one from scratch or may choose to use existing source codes, which in most instances would save time and money. If the needed source code closed or proprietary, then there is a need for permission to be sought but if it is an open-source code, adhering to the terms of the license (if any) becomes necessary.
Open-source codes are a pivotal aspect of technological development, as the same can be utilized for business growth and socio-economic benefit. With free access to source codes, it engenders the proliferation of programmes that can easily and quickly be deployed to create unprecedented software solutions, which has proven to be a very innovative strategy for technological development.
Highlight on Source Codes
Source code is a human-readable text written in a specific programming language. The goal of the source code is to set exact rules and specifications for the computer that can be translated into the machine’s language. As a result, source codes are the foundation of programs and websites.² By having access to a source code, a programmer can modify same to create a bespoke program or make the program function more efficiently.
An open-source code entails publicly available source codes, which third party users can easily access, modify, enhance and redistribute. This is different from closed or proprietary source codes where the capacity to alter it resides only in the person/organization that created the source code. However, the user of an open-source code must be diligent to abide by the terms of the license, because despite being open, there may be restrictions in relation to copying and using such code, therefore the terms of the license must be noted to avoid an infringement claim.
Most open-source codes have terms prohibiting the use of an open-source code to create proprietary software, as this is seen to impede the ability of others to utilise the created software. However, such software created using open-source code can be commercialized but not converted to proprietary software, as most licenses would state that when you distribute the software, you must do so under the same license it was received under.
Types of Source Code License
There are different types of source code licenses, and there may be penalties for non-compliance. If a source code is used without adhering to the terms of its license, the owner might sue and the user may be compelled to publish their source code, hence the need to understand these categories of software licenses before using any code.
Public domain: This license allows anyone to use and modify the source code without any restrictions.
Permissive: This software license stipulates minimal requirements about how software can be modified or redistributed. This is perhaps the most popular license used with free and open-source software.³
Eg: the Apache, Berkeley Software Distribution (BSD), MIT license, etc.
LGPL: If a user simply compiles or links an LGPL-licensed library with their code, they can release their application under any license they wish, even a proprietary license. But if they modify the library or copy parts of it into their code, then they will have to release their application under similar terms as the LGPL.
Copyleft: This is a license type in which code derived from the original open-source code inherits its license terms. These licenses allow you to modify the licensed code and distribute new works based on it, as long as you distribute any new works or adaptations under the same software license. Copyleft licenses are also known as reciprocal licenses or restrictive licenses. Eg: GPL. The terms here is that the users of the software would also have the right to modify the code, hence the programmer has to make the source code available.
Proprietary: This is the most restrictive type of software license. It is copyrighted and bears limits against use, distribution and modification that are imposed by its publisher, vendor or developer. Proprietary software remains the property of its owner/creator and is used by end-users/organizations under predefined conditions.⁴
Highlights of Copyright Eligible Works
Copyright protects the original literary, musical and artistic creations of authors, content creators and other creators. For such works to be eligible for copyright protection, it must be shown that sufficient effort was put in to give the work an original character5 and it is in a fixed medium now known or later to be developed.6 In Nigeria, an eligible copyright work does not need to be registered with the copyright regulatory body – Nigerian Copyright Commission (NCC) for protection to be conferred on it. On fulfillment of eligibility requirements for a copyrighted work, copyright protection is automatically conferred on such work; 7 however, copyright works may be deposited with the NCC for record purposes especially for works which the date of creation cannot be easily ascertained.
Convergence of Source Code and Copyright
Section 51 of the Copyright Act 8 lists computer programmes as literary work; hence, it is recognized as a copyrightable work under the Copyright Act. Similarly, for computer programmes to attract copyright protection it must be shown that sufficient effort was put into such work to give the work an original character; it is in a fixed medium and also fulfills the other requirements outlined in section 1 of the Copyright Act.
Nigeria’s Copyright Act is not specific on any special rights of the holder of software copyright; therefore, rights given to literary works will apply.9 Computer programmes, which come under literary works are entitled to copyright protection if the above requirements are met. Nigeria’s Copyright Act as well as the US Copyright Act of 1976 and the UK Copyright, Designs and Patents Act 1988, do not stipulate what aspects of computer programmes are covered by the Act.10 However, when it comes to source codes, it is generally agreed that it could be protected as an expression, but the method or function carried out by the code could not be.
When seeking to use the work of an author or creative, one must first determine whether copyright protects the work or such is in the public domain. If the former is in the affirmative, then permission must be obtained before use, except it comes under fair use.
The Defence of Fair Use
Regarding fair use of a copyrighted work, Nigeria’s Copyright Act has similar provisions with the UK Copyright, Designs and Patents Act 1988, it stipulates the following as acts that will come under the exception of fair use – fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast; or the doing of any of the aforesaid acts by way of parody, pastiche, or caricature, etc.11 On the other hand, the US Copyright Act of 1976 ¹² in addition to similar provision on the above, provides 4 factors that can be used in determining fair use:
- the purpose and character of the use, including whether commercial or for nonprofit educational purposes;
- the nature of the copyrighted work;
3 the amount of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.13
A brief background of the Google v. Oracle case that was decided on 5th April 2021 by the Supreme Court of the United States 14 will provide insight into how the defence of fair use played out in a copyright infringement case bothering on the unauthorized use of source codes.
Upon Google’s acquisition of Android, it began to build a new software platform for mobile devices, and sought to make the platform compatible with Java, a programming language owned by Oracle.15 To enable programmers familiar with the Java programming language to work with its new Android platform, Google copied roughly 11,500 lines of code from Oracle’s Java SE program. The copied lines are part of a tool called an Application Programming Interface (API), which are specifications that allow programs to communicate with each other or allows programmers to call upon prewritten computing tasks for use in their own programs. Over the course of protracted litigation which began in 2010, the lower courts considered (1) whether Oracle had copyright over the copied lines from the API, and (2) if so, whether Google’s copying constituted a permissible “fair use” of that material freeing Google from copyright liability. 16
SCOTUS agreed, although for argument’s sake, that the Sun Java API falls within works that can be copyrighted and focused on the issue of fair use.17 The Supreme Court held that Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program and enable programmers call up implementing programs that would accomplish particular tasks, was a fair use of that material as a matter of law.18 However, in a dissenting opinion, Justice Thomas19 agreed with thevFederal Circuit that there was nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform20 and allowing fair use of source codes simply because it allows new products to be created effectively redefines the idea of copyright.
The Supreme Court agreed that the APIs used by Google, were necessary functions to keep the compatibility and interoperability function alive for users between the Android software and the Java programming language. This decision assuages the minds of most programmers as Google’s successful reliance on fair use defense, in this case, provides great relief for computer programmers. However, the issue on whether APIs are copyrightable was unanswered by SCOTUS. Some technology experts are of the opinion that APIs should be entitled to copyright protection as they are comprised of original and creative components and their functionality does not preclude them from being written in a variety of different ways to achieve the same outcome. Essentially, majority of the tech community are happy with the decision of SCOTUS as APIs can freely be utilized in making programming systems interact and securely exchange data and information with other systems.
It is hoped that where a similar case arises, the SCOTUS would give a decision on whether APIs are copyrightable as the same would put the issue to rest.
The referenced Google v. Oracle case has been of significant interest within the tech community, as numerous computer programs and software libraries, particularly in open source, are developed by recreating the functionality of APIs from commercial products to aid developers in interoperability between different programming systems or platforms. Notwithstanding, any corporation that uses software internally or distributes products that contain software, needs to understand the risks and advantages of using existing source codes, as proper advice must be obtained, and ways must be ascertained on how to minimize the corporation’s exposure to the possibility of action for copyright infringement. There is therefore the need to consult an intellectual property lawyer, who would advise the company on how to take advantage of the benefits of existing source codes without undue risk, hence creating a broader base for development and innovations.
ABOUT THE AUTHOR
Blessing Udo is a brand protection lawyer with particular interest on how businesses can leverage intellectual property for business growth. She is a first-class graduate of the Nigerian Law School and an associate with the law firm of Jackson, Etti and Edu, a leading Nigerian law firm known for its robust and top-notch intellectual property practice, where she advises clients on intellectual property, brand protection, manages clients IP portfolio and also engages in data protection audits.
1Google v. Oracle (No. 18-956), delivered on 5th April 2021.
2 See definition by Digital Guide IONOS by 1&1.
3 Definition by Security Boulevard
4.Definition by Techopedia
5.Section 1 (2) (a) of the Copyright Act
6.Section 1 (2) (b) of the Copyright Act. Nationality and domicile of the author is also a requirement under section 2 (1) of the Copyright Act.
Bear in mind that a work does not need to have a copyright notice affixed to it to be covered by copyright.
Cap. 68, Laws of the Federation of Nigeria, 1990 (Herein called Copyright Act)
9.Section 6(1) (a) of the Copyright Act
10.This is reaffirmed by SCOTUS in Google v. Oracle (No. 18-956) page 22 – The declaring code at issue here resembles other copyrighted works in that it is part of a computer program. Congress has specified that computer programs are subjects of copyright. It differs, however, from many other kinds of copyrightable computer code.
11.Paragraph a & b, Second Schedule of the Copyright Act
12.17 U.S. Code § 107
These factors were noted by SCOTUS in Google v. Oracle decided on 5th April 2021
14.Herein called SCOTUS.
15.. The Java SE program initially belonged to Sun, but Oracle acquired Sun in 2010 and instituted the lawsuit against Google.
See judgment of SCOTUS delivered on 5th April 2021 – https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf
17.The Supreme Court did not give any holding on whether APIs are copyrightable
18. Lead Judgment delivered by justice Breyer – for a majority of six (Justice Barrett did not participate as the case was argued before she was confirmed).
19.Joined by Justice Alito.
20.Google v. Oracle (No. 18-956) page 16