ZASCA 143 has helped to clarify the position.
In terms of section 21(1)(d) of the Copyright Act, if an employee creates a work in the course of his employment, then his employer is the owner of copyright in that work. Unfortunately, our courts had previously not ruled on what “in the course of employment” means here. The closest that they have come to doing so was in cases relating to an employer”s vicarious liability for the acts of an employee: if an employee caused damage to a third party in the course and scope of his employment, then the employer is liable. However, the tests developed by the courts to determine whether an employee was acting in the course and scope of his employment in this context do not sit comfortably in a copyright context.
Mr Peter King was employed by the South African Weather Service as a meteorologist. During the period of his employment he created computer programmes to assist him in the performance of his duties as a meteorologist. The computer programmes were apparently effective, as the Weather Service adopted them for its own use, with the consent of Mr King. There was subsequently a dispute around delivery-up of the source code for the computer programmes, and after a disciplinary hearing, Mr King was dismissed on the grounds of insubordination.
Mr King contended that he had written these programmes in his own time at home, and that he was consequently the owner of the copyright in the computer programmes. He also contended that the Weather Service had been using these programmes in terms of a tacit license from him (which he promptly terminated). The Weather Service continued using the programmes, upon which he sued them for copyright infringement. He was unsuccessful in the High Court, and appealed to the Supreme Court of Appeal.
As the first stage an inquiry, the court on appeal looked at whether or not Mr King owned copyright in the computer programmes. The critical in inquiry in this regard was whether or not he had written the computer programmes in the course of his employment.
The court did not feel that it could lay down set rules to determine what would constitute “in the course of employment” for purposes of copyright law. The court felt that this inquiry was a factual matter that depends very much upon the circumstances of each case. However, the judgement does seem to take account of tests which have been developed by courts in other countries. No matter, it is useful to look at the factors that the court took into account in reaching its decision, as this gives us a good indication of how courts will approach the question in future.
- The first factor taken into account by the court was how the work created by the employee relates to the business of the employer. In this case, the relationship was very close indeed – so close in fact that the computer programmes that were written by Mr King were incorporated into the Weather Service”s systems and in fact became an important part of them.
- The second factor was the nature of the employee”s duties in terms of the employment contract and how this relates to the works in question. The court held that one should take a broad approach here and not take a strict view by looking at the specific activities required of the employee in terms of his employment contract. In this case, while Mr King”s duties did not include that of computer programmer, the computer programmes that he wrote assisted him directly in performing his duties as a meteorologist.
- Thirdly, the court examined the causal connection between the existence of the employment relationship and the creation of the works. In this case, Mr King”s employment as a meteorologist was the direct cause of his writing the computer programmes in question. The court found this to be decisive.
The court also remarked on certain evidence that showed that Mr King was at one time spending 50 percent of his time at work on creating the computer programmes, which contradicted his version that he created the programmes in his own time.
With these factors in mind, the court held that Mr King had been acting within the course of his employment when he wrote the computer programmes in question. Accordingly, the Weather Service was the owner of the computer programmes and could thus not be liable for infringement of copyright in the computer programmes.