Who owns the copyright in computer programs written by an employee?

Section 21 (1) (d) of the Copyright Act 1998 of 1978 provides that where a work is “made in the course of the author’s employment by another person under a contract of service”, the employer is ”the owner of any copyright subsisting in the work”.  In an action in the High Court, the Applicant sought to enforce a copyright claim in certain written computer programmes against his former employer.  The employee claimed to have created the programs in his own time, at home, to assist him personally in the performance of his duties as employee.  He alleged that it was not part of his duties as a meteorologist to write computer programmes.  The employee claimed that the programs had not been “written in the course and scope of his employment” and that ownership of the copyright in the programmes vested in him and not in his employer.

When the case was decided in the Supreme Court of Appeal it was held that the phrase, “in the course of employment” was not ambiguous and did not require anything by way of extensive or restrictive interpretation.  The Court held that a practical and common sense approach directed at the facts usually produces the correct result.  The Court pointed out that it was dangerous to formulate generally applicable rules to determine whether or not the work was authored in the course of an employee’s employment.  It remained fundamentally a factual issue that depended not only on the terms of the employment contract but also on the particular circumstances in which the particular work was created.  In this case the factual basis for the employee’s claim was not supported by the available evidence.  As meteorologist the employee had to collect and collate meteorological data and transmit it to head office for analysis and storing.  The employee developed his programs for this very purpose.  Although he may not have done it to make his own job easier, he did it because of his employment with his employer.

The Court went on to find that although it had to be accepted that the employee’s initial programming took place at home it was clear that as time passed he 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 a Regional office.  In any event, the Court held, the fact that an employee creates work at home (or even during office hours at the premises of the employer) is but one factor that has to be taken into account in answering the question whether the work was made in the course of his employment.  The earlier Court finding that the programs had indeed been made in the course of the employee’s employment was thus endorsed.