Course and Scope of Employment
It’s easy to determine who owns a physical property. A building is registered at the Deeds Office, and possession can be transferred through a lease. There’s a clear legal structure. But what about property that isn’t physical — like intellectual property (IP)?
In general, the person who creates IP owns it. But when that person is an employee creating IP during the course of their work, the question of ownership becomes more complex.
Who Owns IP Created at Work?
South African legislation provides some clarity: for example, copyright created by an employee in the course and scope of employment belongs to the employer. But what does that phrase actually mean?
Unfortunately, the South African courts have said very little on this topic. The most direct guidance comes from the Supreme Court of Appeal in King v SA Weather Services (716/2008) [2008] ZASCA. The court laid out several factors to consider when deciding if IP was created in the course and scope of employment:
- The nature of the employer’s business
- The nature of the employee’s duties
- The link between the work created and the employee’s role — would the work have been created without the employment?
- All relevant facts of the specific case
Why IP Clauses in Employment Contracts Matter
Cases like King and the well-known “Please Call Me” dispute — which saw Vodacom paying R80 million to a former employee — show how costly IP disputes can be. Without a clear IP clause in an employment agreement, employers may lose ownership of innovations they’ve funded. Employees, in turn, risk having their independent work claimed by an employer.
This uncertainty is avoidable. A tailored contract with clear IP terms can answer the question of ownership before a dispute ever arises.
How A de Bruyn Attorneys Can Help
At A de Bruyn Attorneys, we help employers draft employment contracts that clearly define intellectual property rights. Our agreements ensure that IP developed during the course of employment is properly assigned and protected, while also addressing rights to independently developed work.
We also assist clients in enforcing their IP rights and resolving disputes efficiently. With proactive legal planning, businesses can safeguard innovation and avoid unnecessary risk — while maintaining fair relationships with employees.
Need to protect your intellectual property? Contact A de Bruyn Attorneys for advice tailored to your business needs.