Read the case study below and answer ALL the questions that follow.

KING v SOUTH AFRICAN WEATHER SERVICE 2009 (3) SA 13 (SCA) 2009{3} SAp13

Citation 2009 (3) SA 13 (SCA)

Case No 716/07

Court Supreme Court of Appeal

Judge Harms ADP, Cloete JA, Cachalia JA, Leach AJA and Griesel AJA

Heard November 3, 2008 Judgment November 27, 2008

Counsel ESJ van Graan SC for the appellant. AJ Bester for the respondent

Annotations Link to Case Annotations

Flynote: Sleutetwoorde

Intellectual property - Copyright - Ownership - Copyright in computer program - Whether program made in course of

employment of creator and thus vesting in employer - Practical, common-sense approach directed at facts usually

producing correct result - Issue remaining essentially factual and depending on terms of employment contract and particular

circumstances in which particular work created - Copyright Act 98 of 1978, s 21 (1 )(d).

Headnote: Kopnota

In an action in the High Court, the appellant sought to enforce a copyright claim in certain weather computer programs

against his former employer (the respondent). The appellant claimed to have created the programs in his own time, at

home, to assist him personally in the performance of his duties as employee and that it had not been part of his duties as

meteorologist to write computer programs. Consequently, he claimed, the programs had not been 'written in the course and

scope' of his employment and ownership of the copyright in the programs vested not in his employer but in him. The High

Court dismissed his claim and he appealed against that decision to the Supreme Court of Appeal.

Section 21(1) of the Copyright Act 98 of 1978 provides that where a work is 'made in the course of the author's employment

by another person under a contract of service', the employer is the owner of any copyright subsisting in the work1. Held,

that the phrase 'in the course of employment' was unambiguous and did not require anything by way of extensive or

restrictive interpretation. A practical and common-sense approach directed at the facts would usually produce the correct

result. (Paragraph [13] at 18E-F.)

Held, further, that it was dangerous to formulate generally applicable rules to determine whether or not a work was authored

in the course of the employee's employment. It remained a principally factual issue that depended not only on the terms of

the employment contract but also on the particular circumstances in which the particular work was created. (Paragraph [17]

at 19G - 20B.)

Held, further, that in the present case the factual basis for the appellant's claim was not borne out by the objective evidence.

(Paragraphs [18] - [23] at 20B - 21G.)

Held, further, that the court a quo had been correct in finding that the programs had indeed been made in the course of the

appellant's employment. Appeal dismissed. (Paragraph [24] at21H-l.)

Cases Considered

Annotations

Reported cases Southern African cases

Bezuidenhout NO v Eskom 2003 (3) SA 83 (SCA) ([2003] 1 All SA 411): dictum in para [21] applied

Biotech Laboratories (Pty) Ltd v Beecham Group pic 2002 (4) SA 249 (SCA) ([2002] 3 All SA 652):

applied Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA):

referred to

Memory Institute SA CC t/a SA Memory Institute v Hansen 2004 (2) SA 630 (SCA):

referred to

Morewear Industries (Rhodesia) Pvt Ltd v Irvine (1959 -1963) BurrelPs Patent Law Reports 202:

referred to

Ngubetofe v Administrator, Cape and Another 1975 (3) SA 1 (A):

referred to

Trewhella Bros (UK) Ltd v Deton Engineering (Pty) Ltd Stranex Judgments on Copyright 57:

referred to.

Foreign cases

Ashdown v Telegraph Group Ltd [2002] RPC 5 (CA) 235 ([2001] EWCA Civ 1142): compared Avtec Systems Inc v Peiffer 67

F 3d 293 (4th Cir 1995) (38 USPQ 2d 1922):

referred to

British Reinforced Concrete Engineering Co Ld v Lind (1917) 34 RPC 101 (Ch): compared Butterworth & Co (Publishers) Ltd

v Ng SuiNam [1987] RPC 104 (Singapore High Court):

Source: https://gimmenotes.co.za/wp-content/uploads/2019/01LML4801-king_case.pdf

Answer ALL the questions in this section.

QUESTION 1 (40 Marks)

Examine the background of computer programs and their relation to the Copyright Act of South

Africa.

1.1 (15 marks)

Select the rights that accrue to a copyright holder and judge whether in this case there is copyright

infringement.

1.2 (10 marks)

Examine the ownership of the computer program in the case study above and what is protected by

the copyright.

(15 marks)

1.3

SECTION B [60 Marks]

Answer ANY THREE (3) questions in this section.

QUESTION 2 [20 Marks]

A written agreement was concluded by Mr A and Mr B for the building of a wall. In addition, a Shifren clause was added (any

amendment of the contract must be in writing and signed by the parties). The party requesting the wall (Mr A) then asked

that the height of the wall be increased for an additional fee. The request was in the form of an email with a normal

signature of the requestor. Mr B replied and agreed to change the size of the wall. Examine and discuss whether the

amendment is valid given the existence of the Shifren clause.

QUESTION 3 [20 Marks]

The introduction of the cybercrime bill resulted in the criminalisation of certain online/IT related activities. Examine a range

of criminal offences introduced by the Cybercrimes and Cybersecurity Bill.

QUESTION 4 [20 Marks]

Investigate and critically discuss the relationship between the Protection of Personal Information Act (POPI Act) and the

Promotion of Access to Information Act (PAIA) in protecting personal information of private citizens in South Africa.

QUESTION 5 [20 Marks]

Hilltop College is a private long distance learning institution with thousands of students. Due to its volume of students and

data transmission within and outside the institution, management has entered into a service level agreement with Internet

Service Providers (ISPs).

Investigate the key primary data security related duties of Internet Service Providers (ISPs) towards Hilltop College.