Vodacom's Please Call Me lawsuit has drawn attention to the intricacies of Intellectual Property (IP). Photos: X/ Vodacom | Gallo Images
Your brain, your ideas, but your bosses’ bread and butter? The contractual intricacies of concepts developed during your nine to five could easily become your worst nightmare.
Intellectual Property (IP) disputes have been the root cause of many lawsuits before, but it took the multi-billion rand Vodacom ‘Please Call Me’ case to draw Mzansi’s undivided attention.
Nkosana Makate came up with the concept to buzz someone without airtime so they can call you back, laying the foundation for the development of Vodacom’s ‘Please Call Me’ service.
The long-drawn case has caused many to wonder about the rules of IP, and whether their employer has full ownership of ideas developed within their employment contract.
Does every idea you come up with during your contract of employment belong to your employer?
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Labour law expert, Richard Chemaly said it’s safe to assume that any IP created which relates to your job will be owned by your employer, unless proven otherwise.
“By law, IP cannot be transferred unless in writing, so [whoever] owns the IP in the beginning is a vital consideration,” Chemaly explained.
Taking a page from legal archives, Chemaly said there was a precedent for IP disputes between employers and employees.
“Fortunately, we have a legal precedent set in the SCA in 2009 in the case of King v SA Weather Service where the court dealt with various considerations such as where the software was developed and the scope of the employment duty but stated that they cannot make a general rule,” Chemaly told The Citizen.
He advised workers looking to create and develop new concepts to include provisions related to extra IP in their employment contracts and to be specific about it.
Weighing in on the Vodacom case, Chemaly said the matter was rather complex due to allegations of additional undertakings by management.
“But those issues could have been mitigated if the employment contract actually stipulated what IP is and isn’t included in the scope of the work. That is something parties to employment agreements must start taking seriously,” he exaplained.
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Speaking to The Citizen, IP expert Suzanne Wolhuter said rules regarding IP creation in the workplace differ among companies, adding that some are stricter than others.
“Unfortunately, it’s at the discretion of the company,” she said.
Wolhuter explained that ideas developed in the workplace, within the company’s trade and an employee’s job description would most likely be considered IP of the employer.
However, IP involving ideas that fall outside your scope of work might be a lot easier to defend.
Wolhuter explained that an idea developed outside of working hours and without making use of company resources should automatically be considered IP of the employee, even if they’re still tied to an employment contract.
“If you develop IP which is not in competition with the company you work for, and you develop it independently of them, then you can argue that the IP belongs to you.”
When it comes to pitching ideas to an employer, the IP expert advised workers to make their T’s and C’s clear, and to negotiate for a decent slice of the pie.
“Every employee is within their rights to at least negotiate on what terms they develop IP for their company,” said Wolhuter, warning that some companies might not be open to negotiating.
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