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May 22, 2019

IP ABC - Question of the Week





We are TechieHealth, a mobile-health service provider in Nigeria. Recently, we contracted an app developer Kome Oruma, to build a mobile-health app for us. We agreed to pay 50% upfront and pay balance after delivery of the app. After 12 weeks, Kome Oruma completed the app. To our surprise, Kome Oruma requires that before she delivers the app to us we must sign an agreement which recognizes her as copyright owner. Since we are paying for the app, we refused this demand. In fact, we demanded that Kome Oruma should either hand over the app along with all login protocols or forgo her 50% balance and also prepare to face legal action. But Kome Oruma has not moved a bit. Is an app developer entitled to copyright in an app developed for a client?


Dear TechieHealth

The answer is YES, an app developer is entitled to copyright in an app developed for a client. But being a software program, copyright applies to the source code used in writing the app only, not the resultant app itself. While Kome Oruma is entitled to copyright in the source code behind the app, TechieHealth is entitled to ownership of the resultant app after paying balance for the job. This is where intellectual property differs from real property. Therefore, Kome Orume is obliged to deliver the app to TechieHealth after full payment has been made, But TechieHealth upon receiving the app along with login protocols must not infringe on Kome Oruma's copyright in the app by involving in unauthorized acts, including reproduction, distribution, sale, or other infringing acts.


Software programs are eligible for copyright protection under the Nigerian Copyright Act.
Software programs or computer programs are literary works eligible for protection under the Nigerian Copyright Act. It enjoys the same copyright protection in most parts of the world. Under section 51 of the Act, "computer programs" means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result'. The same interpretation section then recognizes computer programs as a literary work. Section 1(1)(a) of the Act makes literary works eligible for copyright protection.



First ownership of a copyright work vests initially in the author of the work. This is by virtue of section 10(1) and (2) of the Nigerian Copyright Act, unless there is a contract between the parties that stipulates otherwise. Having expended sufficient effort for 12 weeks in developing the mobile-health app, Kome Oruma has given the app originality. She has also written the software program in a fixed medium by saving it in a CD ROM, disk, or other electronic storage device. These entitle Kome Oruma to copyright ownership.


Consequently, Kome Oruma enjoys exclusive right to control reproduction, publication, distribution, or adaptation of the app. TechieHealth does not have any copyright in the work. Your right in the app is limited to the resultant app only.

To avoid uncertainties that often result in disputes, always insist on a software development agreement.
Before contracting a software-development job to a software developer, always request that the developer makes his or her software-development agreement available to you.


This agreement will contain the rights and liabilities of both parties, stating terms and conditions that apply to the app before and after delivery. Typically, the software developer will retain copyright to the source code while the client enjoys ownership of the resultant app. Details about after-delivery improvements, upgrades, etc will be in the agreement.


With a software-development agreement, both parties are clear about each other's rights and liabilities from the outset, thus avoiding or minimizing disputes between the parties after completion of work.



Apart from preventing disputes between the parties, a software development agreement also minimizes unforeseen risks.

Third-party liabilities is a major risk in software development contracts. Third-party liabilities often arise when for instance a software developer infringes on another person's copyright by copying source codes that are subject to copyright in the course of developing the app for an innocent client. (If the aggrieved third party is a competitor to the client, the matter becomes even worse. A good software development agreement takes care of such risks.)


So always insist on a software-development agreement. If the app developer has none, ensure that one is prepared for the parties. It is especially in the contracting party's best interest.

Wrapping Up

Understandably, TechieHealth desires complete control over the mobile-health software. But copyright doesn't work that way. A software developer statutorily enjoys first authorship. If TechieHealth wants absolute control over the app, including source code, a written contract between the parties to this effect is not illegal. Having failed to arrange for this early on, TechieHealth should negotiate.

Contact an IP lawyer or law firm to help review the app developer's written contract and provide legal advice.  

Best wishes


IP ABC


Follow-up questions, if any, are welcomed.

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