of a schedule, and which formed the basis of copyright law in the British Empire and subsequently in most
Commonwealth countries. Except for a short hiatus, the phrase "in the course of employment" has since
remained part of our statute law.5 It is a stock concept in employment law (formerly known as the law of
master and servant). The term is unambiguous and does not require anything by way of extensive or
restrictive interpretation. A practical and common sense approach directed at the facts will usually produce the
correct result.
[14] In the court below and, initially, in the heads of argument King submitted (although not necessarily in these
terms) that the phrase meant that the work must have been authored "in terms of " the contract of
employment in other words, unless the employee had to create the work in terms of the employment
contract, ownership does not vest in the employer. The submission may have had some merit had the Act
provided as section 39 of the British Patents Act 1977 provides, namely, that the employer is the owner of an
invention made "in the course of " the "normal duties" of the employee. This provision changed the common
law test,6 which does not refer to "normal duties" but it retained the "in the course of " requirement and did
not supplant it with an "in terms of " requirement.7 Counsel, wisely, did not persist with the argument but, as
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will become apparent, King's evidence was sculptured to fit the proposition.8
[15] Copyright law in the United States of America is somewhat different: it provides that the employer is
considered to be the "author" and in consequence the owner of a work made for hire. A "work made for hire"
is
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defined in terms that echo those used in section 21(1)(d) of the Act it is a "work prepared by an employee
within the scope of his or her employment".9 The statute does not define "scope of employment", but the US
Supreme Court held in Community for Creative NonViolence v Reid 490 US 730 (1989) that Congress
incorporated commonlaw agency principles into the copyright statute and intended to describe the
conventional masterservant relationship as understood by commonlaw agency doctrine. Consequently, to
show that the creation of a work was within the scope of the employee's employment, the employer has to
establish that (a) the work was of the type for which the employee was hired to perform; (b) the employee's
creation of the work occurred "substantially within the authorised time and space limits" of his post; and (c)
the creation was "actuated, at least in part, by a purpose to serve" the employer's interests.10 The court
rejected other tests espoused by earlier courts, namely whether the employer retained the right to control
the product or actually wielded control over its creation.
[16] Counsel for the respondent relied heavily on US jurisprudence and there are cases that are, on the facts,
hardly distinguishable from those in this case11 but, as Michael D Birnhack recently pointed out, agency law
principles, which were developed in the context of tort law, do not necessarily fit the copyright context.12 The
same may be said about the argument of the respondent that the tests developed in the framework of
vicarious liability should apply. Again, it appears to be wrong to apply delictual "principles" without more to
determine questions of ownership in the arcane area of copyright especially since policy considerations must
differ.13
[17] Having had regard to a number of judgments,14 both local and from elsewhere, it appears to me to be
dangerous to formulate generally
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applicable rules to determine whether or not a work was authored in the course of the employee's
employment. It remains by and large a factual issue that depends not only on the terms of the employment
contract but also on the particular circumstances in which the particular work was created.15 I accordingly
turn to a discussion of the salient facts.
The facts
[18] It is convenient to begin with a discussion of the "business" of the Bureau. By its very nature a weather
bureau collects, processes, analyses and
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stores weather related data. To do this the Bureau developed a Microsoft based Windows Automated
Weather System ("WAWS"), which contained a broad collection of computer program modules used to
capture, process and store weather related data. It is common cause that all the "infringing" programs were
written to conform with and were incorporated into and became an integral part of the Bureau's WAWS. King's
programs were, accordingly, directly related to the "business" of the Bureau. They captured, rectified and
transmitted weather data to head office. And, as he reluctantly had to concede, the programs were to the
advantage of his employer. Much, though, was made by King of the fact that the Bureau was not a commercial
organisation and that the respondent, in terms of its governing Act, has to generate income. As I understand
King's point, it is that his tacit licence did not cover commercial use of the programs by the respondent. The
licence issue, however, arises only once the ownership issue has been determined.
[19] Another important aspect to consider is the nature of King's duties in terms of the employment contract. In