![qxio-waterdrop]()
Who is the owner/author of a work created during studies? The application for admission and the registration document signed by a student, assisted by a parent or guardian if the student is a minor, at the Tshwane University of Technology is in essence a contract between the student and the institution.
The incedentalia of the registration document/application form determines that the student will be admitted to the institution subject to the student consenting to the rules and regulations of the institution.
In the application form, clause 8 of the Memorandum of Agreement states that the student “hereby cede and transfer to the University all rights and title in any intellectual property created by me during my course of study or in any research project I undertake at the University, unless otherwise agreed”
The rules and regulations of Tshwane University of Technology, which is available to a student in a published edition, confirms the position in Chapter 10 clause 10 that copyright will be transferred to the institution with respect to Master’s and Doctorate thesis and dissertations.
Intellectual property consists of various rights that an individual may have and includes copyright, trademarks, patents etc.
In order to come to the conclusion the first aspect that must be examined is whether the assignment of the copyright in terms of the registration document/contract is a legal binding document. Section 22 of the Copyright Act provides in sub-section 1, that “copyright shall be transmissible as moveable property by assignment….” and in sub-section 3 the Act stipulates that such assignment shall only have effect if it is reduced to writing and signed by the assignor/student.
Sub-Section 5, provides that the assignment may be on existing works or for future works.
Therefore, it is clear that the assignment of copyright by the student via the registration document/application form will constitute a legal binding document.
The second aspect refers to what types of works can be assigned by the student. For the purposes of this research it will include all works that was or will be created by such student for the purpose of his/her studies at the institution.
Note that the stipulation of the application form and rules and regulations refers to works that will be created during his/her studies, and therefore only works created during the studies will be applicable. Such works will include amongst others, tests, assignments, presentations, papers etc.
The position might however change if a student, after graduation, creates a text book based on research the student conducted during his/her studies.
If all the requirements for existence of copyright are complied with and the text book is not a mere replica of the research and complies with fair dealing, then author will retain copyright on such a text book.
The second part of the question refers to employees and the works created by them. Section 21(d) provides that in the instance where works are created by an employee under an employment agreement, copyright in those works will vest in the employer.
At the Tshwane University of Technology, the employer added the following in the employment agreement: “Ownership of copyright on any work compiled or produced by a staff member while in the employment of the University, rests with the University in accordance with the stipulations of section 21 of the Copyright Act, 1978 (Act 98 of 1978) as amended.” It is important to note that the focus is on works created under employment agreement.
Therefore if a lecturer, in terms of his employment agreement, is expected to author certain works i.e. class notes, exam papers etc, the copyright in such works will reside with the employer.
If such employee however creates another work i.e. writes a novel which does not fall under the ambit of his/her employment agreement, the employee will retain copyright in such a work.
Therefore in terms of Section 21(d) the Act indicates the ownership, and further in terms of the discussion of the student agreement, it is clear that the principles are mutatis mutandis and therefore the employment agreement will be a legally binding agreement for the assignment of copyright.
Another aspect of this question pertains to what types of works will qualify for this assignment. The simple answer will be all works that is created under the employment agreement, therefore everything created by such staff member in order to fulfill his employment agreement.
However what is the situation if a staff member creates a work which does not fall under his employment agreement?
The answer can be found in Section 3 of the Act, and in short will mean that such work will be owned by that employee.
It is advisable that institutions incorporate an Intellectual Property Policy, such as the Tshwane University of Technology did, where it is stipulated in clause 1.7.24, in addition to the stipulations of Section 21(d) and the employment agreement, that works created by an employee making substantial use of the University’s resources, such work will fall under the ownership of the institution.
Substantial use is defined in the policy under clause 2.12 as the “use of any University-paid time or funding, or the use of facilities, equipment, staff assistance, and/or substantial administrative support that exceeds nominal use, as defined above, including the use of dedicated laboratories, dedicated computer centres and dedicated equipment.”
