across the bar

Writing software at work - new SCA judgment

by Steve - Posted 07 December 2008

The Supreme Court of Appeal in King v SA Weather Service was asked to decide who was the owner of certain software written by an employee (King). The main question to be answered was whether he had written the programs within the course and scope of his employment? 

The court held that although King's job description (as a meteorigical technical officer) did not formally include computer programming when he was employed, his job had evolved to the point where he was spending 50% of his employment time on system development and programming (this contradicted King's evidence that he had developed the programs at home and in his own time).

The court also found that the relevant software was directly related to the employer's business and had been developed by King so that he could do his job better. He had also been asked to write other programs by his employer according to a prescribed format which had to be approved before the programs were implemented. None of the programs developed by King were used or exploited outside his employment. 

The court held that King had written the programs within the course and scope of his employment and that the employer was the owner of the software.

The court did not want to set down any rules relating to this issue and instead said that each case would need to be decided according to its own facts. The court also said that the creating the work at home would not be conclusive in deciding who was the owner of the work.           

Our R0.02

Because there are no hard and fast rules on this, you should probably agree with your employer upfront before you start a project on your own time, that they will not assert ownership over any copyright that comes of it (good luck with that!).

You would probably be well advised to avoid writing anything which is remotely useful to your employer's business or from which they can gain some form of advantage.