to assist him personally in the performance of his duties as employee; that it had not been part of his duties
as meteorologist to write computer programs; that he had authorised the respondent by means of a tacit
licence to use the programs; that he had withdrawn the licence as from 30 June 2002; but that the
respondent was nevertheless "using" the weather programs to provide specialised weather forecasting and
climate information and the like, and also reproduced or adapted them.
Basic copyright principles
[5] Before turning to the particular it may be convenient to set out in general terms certain basic copyright
principles because copyright cases are technical and those relating to computer programs notoriously
difficult.1 It is accordingly necessary, in enforcing any alleged copyright claim, to have regard to all the
relevant statutory requirements necessary to establish a copyright claim in the name of a particular claimant,
and to determine whether or not copyright infringement had taken place.
[6] Copyright is a creature of statute and has to be found within the four corners of a statute, in particular the
Copyright Act 98 of 1978.2 Certain defined works (of which computer programs are one) are eligible for
copyright under the Act. This assumes, however, that the work concerned is "original" ( section 2(1)) and has
been reduced to a material form (section 2(2)). In addition, copyright must have been conferred by virtue of
nationality, domicile or residence or as a result of first publication (sections 3 and 4). It is accordingly of the
utmost importance for a copyright
Page 34 of [2009] 2 All SA 31 (SCA)
claimant at the outset to identify the work or works which are said to have been infringed by the defendant.
[7] Copyright infringement is (subject to an irrelevant exception) actionable "at the suit of the owner of the
copyright" (section 24(1)). It is only actionable at the suit of the author if the author is also the owner.
[8] The word "author" has a technical meaning; and the author is not necessarily the person who first makes or
creates a work. It depends on
View Parallel Citation
the nature of the work. In the case of a computer program, the author is "the person who exercised control
over the making of the computer program" (section 1 sv "author").
[9] The author of a work that attracts copyright is usually the first owner of the copyright (section 21(1)(a)) but
that need not necessarily be the case. An exception, which applies to computer programs amongst others,
concerns the case of a work "made in the course of the author's employment by another person under a
contract of service": in this event the employer is "the owner of any copyright subsisting in the work" (section
21(1)(d)). There is another relevant exception that concerns works which were made "by or under the
direction or control of the State" (section 5(2)) ownership of any such copyright initially vests in the State
and not in the author (section 21(2)).
[10] "Using" a copyright work does not amount to copyright infringement. Primary infringement consists in the
performance of an act, in the Republic, which the owner has the exclusive rights to do or to authorise without
the latter's consent (section 23(1)). (Secondary infringement is not in issue and need not be discussed.) The
exclusive rights of the owner depend on the nature of work. In the case of computer programs the important
rights are those of reproduction, adaptation and rental.3
[11] The issues in this case are many. In relation to the issue concerning the subsistence of copyright they concern
authorship, originality, and ownership (whether belonging to the author, the employer or the State). In
respect of infringement the questions are whether the respondent had the consent (or licence) of the owner;
the terms of the licence; the validity of the notice of cancellation; and whether King has established that the
respondent had committed any infringing act since the date of revocation of the licence. In view of my
conclusion it is unnecessary to resolve all of these issues.
Page 35 of [2009] 2 All SA 31 (SCA)
View Parallel Citation
Ownership of copyright: "in the course of employment"
[12] For purposes of this appeal I shall assume that King authored, not only in the sense of compiling, but also in
exercising control over the making of the weather programs on which he relied in other words, that he was
the author as defined in the Act. I shall furthermore assume that the state is not the owner of the copyright
by virtue of the provisions of section 5(2) because the works had not been made "by or under the direction or
control of the State".4 I accordingly proceed to consider whether, in terms of section 21(1)(d), the computer
programs were authored by King "in the course of (his) employment by (the Bureau) under a contract of
service". The inquiry is limited to the Bureau (as part of the State) because the works on which King relied
were allegedly all made before the respondent had been constituted. In other words, if the works were made
in the course of his employment with the Bureau and ownership in the works accordingly vests in the State,
King had no rights to enforce against the respondent.
[13] The wording of section 21(1)(d) can be traced back to at least section 5(1)(b) of the British Copyright Act
1911, which was incorporated into our Patents, Designs, Trade Marks and Copyright Act 9 of 1916 by means