The Silent Debate: Ownership of Copyright in Literary Works within Universities
| Date | 16 August 2019 |
| Published date | 16 August 2019 |
| Pages | 74-97 |
| Citation | (2014) IPLJ 74 |
| Author | Kundayi Masanzu |
THE SILENT DEBATE: OWNERSHIP
OF COPYRIGHT IN LITERARY
WORKS WITHIN UNIVERSITIES
P J King v South African Weather Ser vices1 sets a precedent for copyr ight
ownership in employment relationsh ips. By outlining what constit utes the
course of employment, this prece dent has substantial im plications for the
employee-author creating works that have some bea ring on his or her duties
and responsibilities as laid out i n the employment contract.2 Employment
relationships where the ownersh ip of copyright is not set out in the contrac t
could lead to a scenario wherei n one party could assert owner ship in the work
whereas the other has sinc e begun re-producing a nd/or licensing it as the
owne r.3 That is why it is impor tant to ascer tain who the copyrig ht owner is,
in order to know who has the exclusive right to exploit the work.4 Therefore,
where a contract of employment is silent on copyr ight ownership, the
precedent set in King’s judgment has to be relied on to a scertain if the work
was created in the cou rse of employment – in which case, the employer will be
the copyright owner. This w ill be important for any business enter prise where
the work has the potential to be exploited com mercially. However, in academia,
copyright ownership w ill have to be viewed against academ ic freedom and
how an institution’s ownership of copyright in the employment relationship
could impact the employee’s right to academic freedom.5 T his is because
universities are one of the major producer s of research output in the form
* BA Law (Swaziland) LLB ( Wits)
1 2007 BIP 323 (TPD).
2 HB K lopper ‘Copyrig ht in works produc ed in the course of e mployment King v SA Weather
Station Service 2009 3 SA 13 (SCA)’ (2010) 73(2) Journal of Cont emporary Roman Dutc h Law
476.
3 Trewhella Bros (UK) Lt d v Deton Engineer ing (Pty) Ltd 57 JOC (A) the applicant was a c ompany
owned by two broth ers in partnersh ip, who had re-establishe d another branch after t he closure
negotiated wit h another firm to assi st in the manufacture of t he product. From the facts of the
case there was n o evidence that th e employment was gover ned by a formal wr itten contra ct
of service wit h previous company and the sole issu e for determination was whe ther or not the
drawings wer e made in the course a nd scope of employment with t hat company. It was held that
there was a cont ract of service but copy right in the draw ings had been assig ned on the basis of a
written a greement. See also Fern tex v Premier Springs In dustrial Manufact urers 2003 BIP 254
and Lacfin v L e Roux 769 JOC (O).
4 Ibid.
5 Section 16(1)(d) Constitut ion of the Republic of South Afr ica.
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of journal art icles, book chapters and monographs, all of which ent itle the
institutions to st ate subsidies.6
The South Africa n Copyright Act7 governs copyright ownersh ip. Section 21(1)
or creating the work.8 Howeve r, s 21(1)(d ) of the Act provides an exception
to this rule by ind icating that where the ‘work is made in t he course of the
author’s employment by another person under a contrac t of service’ the
employer will be the owner of copyright in t hat work. This was the applicable
provision in King’s judgment.9 The provision, however, will not affect the
the honour and reputat ion of the author.10 Section 21(1)(c) then provides for a
different employment relationship, know n as a contract of work, in which the
worker has more autonomy and is on the same footing as t he work-giver.11 In
that scenario the copy right will belong to the author until or afte r payment for
the work is made.
copyright and a litera ry work forms par t of that list.12 The Act goes further
academic works such as lect ure notes, study gu ide materials, conference
papers, journa l articles, book chapters, textbooks a nd monographs are covered
13 The pur pose of this article is to look at whether the creat ion
of these works by university employees falls with in the meaning of ‘course of
em p lo y m e nt ’. 1415 who must
ascertai n whether the institut ion or the employee is the owner of copyright
because a contract to publi sh the work has to be entered with the copy right
6 A Report of th e Council on Highe r Education Advice a nd Monitoring D irectorate ‘Higher
Education Mon itor – The State of High er Education in S outh Africa’ (Octob er 2009) 8 CHE
Monitor 49–50.
7 Act 98 of 1978.
8 Section 21(1).
9 Section 21(1)(e) Copyright Act 98 of 1978 provides that an a greement between the pa rties can
exclude the operat ion of this rule. T herefore, this a rticle will focu s on scenarios whe re such
alternat ive arrangements have n ot been made.
10 Section 20.
11 O Dean, Han dbook of South Afric an Copyright Law (2 012) 1-40 .
12 Section 2(1).
13 Section 1(1).
14 Literary works produc ed within an i nstitution w ill be much wider an d will include Mast ers’
dissert ations and PhD th eses, however, this ar ticle will neith er cover nor addres s copyright
ownership ar ound these works since s uch works are largely produ ced by students.
15 Section 1(1)(h) Copyright Ac t 98 of 1978 provides that the publishe r enjoys copyright owne rship
in the typ ographical setti ng of the work when it is published and th is is known as the publishe d
edition. Should t he institut ion intend to dis seminate t he work in this publis hed format, pe rmission
will have to be obt ained from the publish er.
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