King v The South African Weather Service

Mr Pieter Johannes King was a long-standing employee of the Chief Directorate of the Weather Bureau (the Bureau), a division of a state department, working as a meteorological technical officer in charge of the Upington office. The South African Weather Service (respondent) was formed in terms of the South African Weather Service Act 8 of 2001 and took over all functions of the Bureau from 15 July 2001, with King automatically becoming an employee of the respondent. Between 1980 and 2002, King created a number of weather computer programs. A dispute arose when King refused to hand over source codes of these programs to the respondent, claiming he owned the copyright. He contended the programs were written in his own time at home to assist him personally in performing his duties, and that writing computer programs was not part of his duties as a meteorologist. On 12 June 2002, during suspension following disciplinary proceedings for insubordination, King notified the respondent that programs written prior to 7 June 2000 were not written in the course and scope of his employment. He claimed that if any licence existed for the respondent to use his programs, he was terminating it effective 30 June 2002. King was subsequently dismissed after being found guilty at a disciplinary hearing. He then instituted action claiming an interdict and damages for copyright infringement.

• Whether King was the author of the computer programs for purposes of the Copyright Act 98 of 1978
• Whether the computer programs were made 'in the course of employment' under section 21(1)(d) of the Copyright Act, thereby vesting ownership in the employer
• Whether ownership of copyright in the programs vested in the state under section 5(2) of the Copyright Act
• The interpretation and application of the phrase 'in the course of employment' in the context of copyright ownership
• Whether King had granted a tacit licence to use the programs and if so, whether he could validly terminate it
• Whether the respondent committed any acts of copyright infringement

The appeal was dismissed with costs.

Where a work (including a computer program) is made by an employee in the course of employment under a contract of service, copyright ownership vests in the employer under section 21(1)(d) of the Copyright Act 98 of 1978, regardless of whether creating such work was an express term of the employment contract. The phrase 'in the course of employment' is a stock concept in employment law requiring a practical and common-sense approach directed at the particular facts and circumstances. Relevant factors include: (1) whether the work relates to the employer's business; (2) whether there is a causal connection between the employment and creation of the work (i.e., whether but for the employment, the work would have been created); (3) whether the work was created to perform or facilitate the employee's duties; (4) whether the work was integrated into the employer's systems; (5) whether the employer prescribed the format or approved the work; and (6) the actual time spent on such work during employment. The fact that work was done at home or after hours, or that it was not expressly required by the employment contract, are merely factors to consider but do not determine the issue. The inquiry is factual and depends on both the terms of the employment contract and the particular circumstances in which the work was created.

The Court made several non-binding observations: (1) It noted that copyright cases are technical and those relating to computer programs are notoriously difficult, requiring careful regard to all statutory requirements. (2) The Court discussed but did not decide whether the state would have been the owner under section 5(2) (works made 'by or under the direction or control of the state'). (3) The Court observed that it would be wrong to apply delictual principles of vicarious liability without more to determine questions of copyright ownership, as policy considerations differ. (4) The Court commented on US jurisprudence under the 'work made for hire' doctrine and the Supreme Court's decision in Community for Creative Non-Violence v Reid, noting that agency law principles developed in tort do not necessarily fit the copyright context. (5) The Court distinguished the British Patents Act 1977 section 39, which refers to 'normal duties', noting this changed the common law test but retained the 'in the course of' requirement without supplanting it with an 'in terms of' requirement. (6) The Court noted that counsel was unable to point to any evidence establishing an infringing act after the date the licence was supposed to have ceased, and that even the WAWS system was no longer being used by the respondent at the time of trial. (7) The Court emphasized that ownership could not be changed retrospectively by cancellation of a job evaluation.

This case is significant in South African copyright law for its comprehensive analysis of the phrase 'in the course of employment' under section 21(1)(d) of the Copyright Act 98 of 1978 in determining copyright ownership. It establishes that copyright in works created by employees vests in the employer when made in the course of employment, even if: (1) creating such works was not expressly part of the employment contract or job description; (2) the work was done partly or wholly at home or after hours; (3) the employee used the work to make their own job easier; or (4) the employee exercised creativity and control in creating the work. The case clarifies that 'in the course of employment' is a factual inquiry requiring a practical, common-sense approach rather than application of rigid rules. It is particularly important for computer programs and other intellectual property created by employees, establishing that ownership follows from the close causal connection between employment and creation, the work-related purpose, and incorporation into the employer's systems and business. The judgment also provides valuable guidance on the technical requirements for establishing copyright claims, the distinction between authorship and ownership, and the importance of properly identifying the works allegedly infringed.