In the course of duty

COPYRIGHT is a form of intellectual property which gives the creator of an original work exclusive rights over that work for a certain time. The intent of copyright is to allow authors to have control of and profit from their works, thus encouraging them to create new works and to aid the flow of ideas and learning, according to Wikipedia.

One exception to the general rule that an author has copyright of their work is where they created said work in the course of their employment.

The Supreme Court of Appeal recently considered the phrase "in the course of employment" as it appears in Section 21(1)(d) of the Copyright Act of 1978, points out Herman Blignaut, a lawyer with intellectual property  law firm Spoor & Fisher.

A CASE IN POINT

In King v SA Weather Service, King, the appellant, was employed by the SA Weather Service (SAWS) for more than thirty years. He was initially appointed as meteorological technician and later became the head of the Upington Weather Station. His duties included the collection, processing, analysis and storage of weather related data.

But, between the years 1980 and 2002 King wrote a number of computer programs in his own time, at home to assist him personally in the performance of his duties as employee.

The programs became extensively used by King`s colleagues throughout various of the SAWS`s offices.

While King claimed that it was never an express duty in any of his job descriptions to develop computer programs, he had over the years prepared numerous quarterly reports in which he detailed the performance of his duties of which a major component, by his own account, was programming.

When his employment was terminated he demanded that the SAWS ceased use of the programs authored by him and eventually sued for both copyright infringement and damages.

Blignaut explains that the main enquiry which had to be conducted by the courts was whether the programs were created in the course of King`s employ with the SAWS, as both parties claimed ownership thereof.

The court dismissed King`s appeal on the basis that ownership of the copyright in the computer programs vested in the SAWS as they were held to have been created in the course of his employ with the institution.

One of the reasons for its conclusion was that, although it may not have been recorded in any formal manner, King`s duties changed over the years. As meteorologist he had to collect and collate meteorological data and transmit it to head office for analysis and storing. The programs were developed for this very purpose, and while he may have written the programs to make his own job easier, he did so because of his employment with the SAWS.

"There was held to be a close causal connection between the King`s employment and the creation of the programs. But for his employment with the SAWS, King would not have created the programs."

THE BIGGER PICTURE

Blignaut indicates that although cases such as these have not been common in SA, indications are that they are increasing. "The court`s ruling is definitely in line with accepted practice in developed markets. In fact, we relied on reported case law from the US which assisted the court in reaching its conclusion."

He also points out that the court`s ruling applies only to employees under contracts of service. "It definitely does not apply to independent contractors. Independent contractors would normally own the copyright in computer programs developed by them. It is a common misperception that when a person pays for a work to be developed/created, that they also own the copyright that may subsist in such work. In cases where a work has been created by an independent contractor, the copyright will have to be transferred by means of a written deed of assigned signed by the assignor in order for the person who paid for the work to own the copyright," he warns.

However, continues Blignaut, the court`s judgment should not be considered as a deterrent to developers creating works in the course of their employment. "Employers and employees should rather be aware of the relevant legal principles and put in place appropriate arrangements to manage these types of scenarios. This can be done through intellectual property policies and/or additional provisions in employment contracts," he says.