INVENTOR WHILE AN EMPLOYEE: WHO OWNS THE INVENTION- A DIVE INTO THE SEMINAL JUDGEMENT OF King v South African Weather Service (716/07) ZASCA 143

This is one of the cases I remember being in a lecture in university and it being the topic of discussion for that day. At the time, I did not appreciate how impactful this judgment is because I was too busy focused on passing the module instead of learning, understanding, developing wisdom around the subject, and finding my opinion in it. And reading it now, I realize that its clarity regarding the question it answers will stand the test of time. Currently I don't know as to whether the jurisprudence as pronounced in this judgment regarding invention while under employment has shifted since this judgment, but I am confident that this judgment is still law till this day.

I have written about the law and its significance in modern civilization. In the writing I provided, law is the bridge that separates chaos from order. It ensures that we don't leave everything to nature to take its course. Nature can be destructive, and law has played a big role in managing that destruction.

But sometimes how it manages that destruction can lead to unfair results. Reading this judgment, i have deep respect for it because it clearly explains a law and how it applies, and i geek out when law does that, but i also feel that it creates space for injustice to fester because what do mean that an invention of an individual is wholly owned by the employer. Ofcourse there is safeguards in place to protect the inventors, but not everyone knows what they will invent until they invent it. Its not right, as per my perspective, that one is punished because he invented something at the time when they got employed.

The judgment of King & Weather Service, is perfect law explaining that situation in social interaction where an employee invents while working for an employer. As is usually the legal analysis employed is the FILAC method, which i tweaked for the purposes of extracting information from written judgment which i find useful to helping me understand. The Facts.........

1. Facts

The appellant, Mr. Pieter Johannes King, was a long-standing employee of the Chief Directorate of the Weather Bureau ("the Bureau"), which was a state department division. In July 2001, the South African Weather Service ("the respondent"), a juristic person, was established via the South African Weather Service Act 8 of 2001, taking over the Bureau's functions and personnel, including Mr. King. Mr. King served as a meteorological technical officer in charge of the Upington office.

Between 1980 and 2002, Mr. King developed several computer programs designed to capture, process, and store meteorological data. A dispute eventually arose when Mr. King refused to hand over the source codes for these programs to the respondent. This refusal led to his suspension and eventual dismissal for insubordination. During his suspension, Mr. King claimed that he was the author and owner of the programs, alleging they were written in his own time, at home, for his personal assistance in his duties, and that programming was not part of his official job description. He further claimed that the respondent’s continued use of the programs after he withdrew a "tacit licence" constituted copyright infringement, for which he sought an interdict and damages.

2. Issues

The central legal issue before the SCA was to determine the ownership of the copyright in the computer programs. To resolve this, the court had to answer:

• Whether the computer programs were created "in the course of the author’s employment" under a contract of service, pursuant to Section 21(1)(d) of the Copyright Act 98 of 1978.

• Whether the fact that the work was created "after hours" or "at home" or fell outside a formal job description was sufficient to vest ownership in the employee rather than the employer.

  
  

3. Applicable Legal Rules and Principles

The court's analysis was grounded in the Copyright Act 98 of 1978:

• Copyright as a Statutory Right: Copyright is strictly a creature of statute and must be found within the Act.

• Ownership vs. Authorship: While the author of a work is generally the first owner (Section 21(1)(a)), this is subject to exceptions.

• The Employment Exception: Section 21(1)(d) stipulates that where a work is made in the course of the author’s employment by another person under a contract of service, that other person (the employer) is the owner of the copyright.

• State Ownership: Section 5(2) and 21(2) provide that works made under the "direction or control of the state" vest ownership in the state.

• Definition of Author for Computer Programs: The "author" is the person who "exercised control over the making of the computer program".

• Right to Sue: Under Section 24(1), an infringement action is only actionable at the suit of the owner of the copyright.

  
  

4. Court's Application of Legal Rules

The SCA adopted a "practical and common sense approach" to the phrase "in the course of employment".

First, the court evaluated the nature of the work in relation to the employer’s business. The programs were written to conform with and were integrated into the Bureau's Windows automated weather system (WAWS). They were used to capture and transmit data to head office, which was the core function of the Bureau.

Second, the court examined the nature of the employee’s duties. While Mr. King’s formal "Personnel Administration Standard" did not explicitly list programming, the court held that a job description is not all-embracing and can change by implication. Crucially, Mr. King’s own quarterly merit reports stressed that programming was a major component of his work, and a job evaluation he agreed to in 2000 estimated he spent 50% of his time on system development.

Third, the court addressed the causal connection. It found that Mr. King would not have created these programs but for his employment. His employment was the causa causans of the programs; they were purely work-related and even written for other weather stations at their request.

5. Judgment and Reasoning

The SCA dismissed the appeal with costs, confirming the trial court's finding that Mr. King was not the owner of the copyright.

The court reasoned that Section 21(1)(d) does not require that a work be authored "in terms of" a contract, but rather "in the course of" employment. The court rejected the narrow interpretation that an employee must be specifically hired to create a specific work for the employer to own it. Instead, the court focused on the objective facts of the workplace reality.

The reasoning highlighted that the programs were to the distinct advantage of the employer, were created because of the employment relationship, and were developed using the employer's prescribed formats for use in the employer's proprietary systems. The court further noted that creating a work at home or after hours is merely one factor and does not automatically override the fact that the work was made in the course of employment if it is fundamentally work-related.

6. Influence on Future Cases

This judgment has several significant implications for future intellectual property litigation in South Africa:

• Clarification of "Course of Employment": It establishes that "in the course of employment" is a factual inquiry that goes beyond formal job descriptions. It prevents employees from claiming ownership of work-related innovations simply because they were "proactive" or worked on them at home.

• Objective Evidence over Subjective Claims: The court’s reliance on Mr. King’s own performance reports serves as a reminder that contemporaneous business records (facta probantia) are often more persuasive than a litigant’s subsequent testimony.

• Integration of Work: If a work is designed to be an integral part of an employer’s system, it is highly likely to be found to be created in the course of employment.

  
  

7. Broader Impact on Lived Realities

The judgment significantly affects the relationship between employers and innovative employees.

For Employers: It provides a strong legal shield for companies and state organs, ensuring that the software and systems they rely on—and which their employees help build—cannot be "held hostage" by an employee claiming individual copyright ownership. It reinforces the principle that the employer, who provides the platform and the "reason" for the work's existence, should reap the benefit of that work.

For Employees: It serves as a stern warning. Employees who develop side projects or software tools that are "purely work-related" or "made his own job easier" must be aware that their employer likely owns that work by default under Section 21(1)(d). To avoid the lived reality of losing rights to their creations, employees must ensure that any work they intend to own is clearly distinct from their employer’s business or is governed by a specific written agreement to the contrary.

For Legal Practitioners: The case underscores the technicality of copyright. It demonstrates that identifying the correct owner under Section 24(1) is a jurisdictional prerequisite; if you sue as an author who is not the owner, your claim is fundamentally flawed.

DISCLAIMER: THIS DOES NOT CONSTITUTE LEGAL ADVISE NOR ACT AS LEGAL AUTHORITY FOR THE SUBJECT DISCUSSED. THIS IS BASED ON AN IDEA, A CURIOSITY AND DOOM SCROLLING ON SAFLII. CONSULT YOUR ATTORNEY, PREFERABLY LOCAL ATTORNEY AND TAKE IT FROM THERE