Question of the Week
I’m John Udeze, an entrepreneur who runs FinSoft, a technology business in Port Harcourt. Six months ago, I came up with a FinTech business idea. Because the business would be best ran as an app, we contracted a professional app developer in Lagos to build the app for us. The app developer emailed invoice and app-development contract. We paid and signed accordingly. After the developer completed the app, she handed over the app to us but to our shock refused to hand over the source code used in building the app. Till date, she insists the source code does not belong to us. Since this was a contracted work, is my company FinSoft not the owner of the source code as well?
You want to know if apart from owning the resultant app from the software development you also own the source code.
The answer is NO.
Your company—FinSoft—does not own the source code. Under copyright law, source code belongs to the app developer, not the contractor, FinSoft. What belongs to FinSoft is the resultant app, not the source code behind the app. Except if the app-development contract you signed states that FinSoft would own the source code as well, the app developer can rightly hold on to the source code as the copyright owner. This is the position of the copyright law in Nigeria and most countries.
Nigeria’s Copyright Act favours the author or creator of a work, giving him or her first copyright ownership.
First, the Nigerian Copyright Act has a general position on who has copyright in a work. Under section 9(1) of the Act, copyright shall vest initially in the author. The author, in this case, is the app developer, not FinSoft.
Second, depending on the nature of work and the nature of business or relationship between an author of a work and a person or entity the author has created the work for, the Nigerian Copyright Act has various positions on who has copyright in the work.
In your own case, since FinSoft contracted the app developer to build the fintech-business app, copyright in the source code belongs—in the first instance—to the app developer. Even if the app developer was your employee, the position remains the same—the app developer first owns the source code, not FinSoft. This is the effect of section 9(2) of the Act.
How FinSoft Can Become Copyright Owner of the Source Code
One way FinSoft can become the copyright owner of the source code is if the app-development contract it signed with the app developer expressly states that FinSoft owns the source code as well. To determine this, we advise you consult an IP lawyer or law firm to help you study the app-development contract closely and guide you accordingly.
If the app-development contract does not contain the above and there is no other contractual document between the app developer and FinSoft stipulating that FinSoft owns the source code, it’s bad for FinSoft—very bad considering the resources the company must have invested in building the app. Consider consulting an IP lawyer or law firm for professional advice.
Senator Ihenyen is the Lead Partner at Infusion Lawyers, a virtual IP & IT law firm. A contributor and editor to IP ABC, his law firm’s weekly publication on IP, Senator enjoys consulting on and writing about intellectual property. When Senator is not doing any of these, the best place to catch him is LinkedIn or a techy event he has been invited to speak. Senator likes to think he is living the best of two worlds—IP & IT. His dream is to power Africa’s knowledge economy in the digital age. http://linkedin.com/in/senator