When employee claims copyright

Imitation can be costly to the innovator. PHOTO | FOTOSEARCH 

By CATHY MPUTHIA
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Summary

• The general rule is that all works created in the course of employment belong to the employer.
• But certain exceptions apply and these all depend on the circumstances of the case.

The strength of your case largely depends on your employment contract. The innovative programme “Dawa”qualifies for the grant of the intellectual property right known as copyright.

The general rule is that all works created in the course of employment belong to the employer. But certain exceptions apply and these all depend on the circumstances of the case. The court will consider whether the work was created during working hours, where it was created, your job description and who provided the resources. If it was not part of your duties to create the works and you did it independently, using your own resources, you are likely to have a good case against your employer.

It was your duty to implement programmes that were already running. It was not your job description to create programmes such as “Dawa.” Furthermore, you say you used your own software to produce beats. From the facts you have provided, your circumstances fall within the exception.

In the case of MEI Fields Designs Ltd v Gifts Ltd the claimant was employed as a Designs Director and her duties were mostly administrative and managerial. It was not her job description to do actual card designs.

During her free time she designed and created cards and included her signature at the bottom of the cards. But her employer later sued her, claiming the cards. The court ruled in favour of the employee, saying it was not her duty to design cards and that she had done this using her own resources.

The success of the claim depends on the contract terms. The general rule is an employee owns no intellectual property over works created during employment but your case seems to fall within the exceptions.