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Employer v Employee: who owns that copyright?
February 17, 2009 – 12:16 pm by Jana Van ZylYour employee develops software for (i) his own use to improve his work performance; or (ii) use by the employer. Who owns the copyright in the software?
At a first glance, the answer seems obvious: The Copyright Act 98 of 1978 indeed makes provision for this in section 21 (1) (d) where it states that where:
“a work is made in the course of the author’s employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work….“.
One may think that this question is only relevant in the context of the software development industry - an appointed software developer must know that the software developed under an employment contract will be owned by the employer. But what happens where your employee is not a “developer” by definition and not appointed as a “developer” under an employment contract? And what if your employee develops the software for his own use in performing his employment duties? And how does one decide whether the software was indeed developed “in the course of employment“? Not always that easy to answer.
how does one decide whether the software was indeed developed “in the course of employment“?
The Supreme Court of Appeal was faced with some of these questions in the matter of
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