SA Weather Services succeeds in software copyright case
4/12/2008

In a judgment handed down on 27 November 2008 in King vs SA Weather Service (716/2007), the Supreme Court of Appeal of South Africa has held in favour of the Respondent, the South African Weather Service, in a case involving alleged infringement by it of the copyright of the Appellant in certain weather-related computer programs.

The case turned on the question of whether the Appellant (who was assumed to be the author of the programs) created them in the course of his employment under a contract of service and, as a result, whether he was (or was not) the owner of the copyright.

Briefly, King had been an employee of the then Weather Bureau (which was later replaced by The South African Weather Service) and was the meteorological technical officer in charge of the Upington office. During the period of his employment, between 1980 and 2002, his duties included capturing, processing and storing weather-related data. He wrote the programs to capture, rectify and transmit weather data to head office.

Neither King’s contract of service, nor the Respondent’s personnel standard for meteorological technicians, considered computer programming as part of his job description. For these and other reasons, the Appellant contended that he had written the programs outside the course of his employment.

The Supreme Court of Appeal analysed these and further facts relevant to the Appellant’s duties under his employment contract. It held that one must look at matters broadly and not by dissecting the employee’s task into its component activities. Whilst computer programming would not normally be part of the duties of a meteorologist, the Appellant’s duties did include the collection and collation of data and its transmission to head office. He developed the programs for this very purpose. Although he may have done so to make his job easier, he did so because of his employment with the Bureau and he would not have created them but for his employment.

The programs were not created for external use by others but were purely work-related. Although, initially, the programs had been written after hours, the Appellant had increasingly spent time during office hours developing the programs. The court held that there was, accordingly, a close causal connection between the employment and the creation of the programs. King’s employment was the causa causans of the programs.

In the result, the SCA held that the Appellant did not own the copyright and his appeal seeking the imposition of an injunction based on copyright infringement was dismissed with costs.

Chris Job
Chairman
chris@adamsadams.co.za
4 December 2008