A court appeal has confirmed the rights of an employer to intellectual property in the form of computer programs written by an employee, even though the employee was not employed as a programmer.
The Supreme Court of Appeal has dismissed the appeal by a former employee of the South African Weather Service who tried to prevent the organisation from using software he had developed once his employment contract was terminated. The appeal was dismissed with costs on the ground that he was not the copyright owner.
What is significant in this case is that the court found that while an employee remains the author of a work, ownership of copyright remains 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," says Herman Blignaut, a partner at Spoor & Fisher, which represented the Weather Service.
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. His duties were the collection, processing, analysis and storage of weather-related data.
Between 1980 and 2002 King wrote a number of computer programs in his own time, at home, to help him perform his duties. He taught himself how to develop computer programs and initially did so with software he had acquired himself.
Over time, King's colleagues in various Weather Service offices began to use the programs extensively to help them perform their duties. His peers and supervisors relied on and allowed him to become directly involved with the Weather Service's system development and programming structures because of his natural interest and skill in writing programs. He was thus given the freedom and support to program in Upington on a decentralised basis.
"It's important to note that while he tested the software during business hours and implemented it at the office, it was never a function of meteorologists to write computer programs," says Blignaut.
King himself 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 ground of insubordination. He was subsequently found guilty at the disciplinary hearing and dismissed.
King then sought to enforce a copyright claim regarding the programs he had developed while employed by the Weather Service.
"The main question which had to be investigated by the court was whether the programs were created in the course of King's employ with the Weather Service as both parties were claiming ownership," says Blignaut.
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 also 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 reasoned as follows:
* The programs were directly related to the business of the Weather Service and were written to conform with and become an integral part of its automated weather system. They captured, rectified and transmitted weather data to head office and generally were, as King also conceded, to the advantage of his employer.
* The matter had to be looked at broadly, and not by dissecting King's tasks as outlined in his job description or employment contract. 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. While he may have written the programs to make his own job easier, he did so because of his employment with the Weather Service.
* There was a connection between King's employment and the creation of the programs. But for his employment with the Weather Service, King would not have created the programs. The court considered the fact that the Weather Service prescribed the format of the programs and had to approve them before they were implemented and used.
* The fact that an employee creates a work at home (or even during office hours at the premises of the employer) is but a factor to be taken into account in answering the question whether the work was made in the course of his employment. 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," Blignaut says. "In addition, the scope of employment may change explicitly or by implication. This means that the facts of each matter will be critical in deciding whether a work was created in the course of an employee's employment. These facts will not be limited to what is contained in any job description or contract of service between an employer and employee, but will include all the surrounding circumstances."