You Cannot Take Copyright With You When You Quit
The Supreme Court of Appeal has dismissed the appeal by a former employee of the South African Weather Service who, after his employment contract was terminated, tried to prevent the organisation from using software he had developed while in its employ.
The court found that, although the employee remained the author of the work, ownership of copyright remained with the employer.
The court held that “in the course of employment” was the determining factor in who owns copyright, whether the software was developed within working hours or not.
Pieter King was employed by the SA Weather Service for more than 30 years. Initially appointed as a meteorological technician, he later became the head of the Upington Weather Station. Between 1980 and 2002 King wrote a number of computer programs in his own time, at home, to help him perform his duties . Over time, King’s colleagues in various weather service offices began to use the programs .
He tested the software during business hours and implemented it at the office .
King claimed that it was never an express duty in any of his job descriptions to develop computer programs, yet he had over the years prepared numerous quarterly reports in which he detailed the performance of his duties of which a major component, on his own version, was programming.
A dispute arose concerning the source codes of computer programs developed by King, which he refused to hand over to the weather service. King was suspended and disciplinary steps were taken on the grounds of insubordination. He was subsequently found guilty at the disciplinary hearing and dismissed.
King then sought to enforce a copyright claim for the programs.
In reaching its conclusion, the court insisted that three guidelines be taken into account: the particular facts of the matter; the terms of the employment contract; and the circumstances in which the work was created.
The court dismissed King’s appeal on the basis that ownership of the copyright in the computer programs vested in the weather service as they were created in the course of his employ with the organisation.
The court also took into consideration the fact that the weather service prescribed the format of the programs and had to approve them before they were implemented and used.
King spent increasingly more of his office hours developing programs, to such an extent that he failed to give sufficient attention to his duties as head of the Upington office.
In terms of the judgment, there can now be no doubt that a work may be created in the course of employment without having been created in terms of the contract.
In addition, the scope of employment may change explicitly or by implication. Th e facts of each matter will be critical in deciding whether work was created in the course of an employee’s employment.