In view of the finding that the applicant's claim to copyright cannot be sustained, it is not necessary to deal with a
number of issues that were canvassed in the evidence. It is, in particular, not necessary to deal with the major
issue of infringement. Suffice to say that I find Jordaan's penetrating technical analysis of the various programs
convincing. He highlights the common origin of the programs, and of elements of the programs. Thus he concludes
that the final version of Data Explorer has been refined over the years, but that it would not have been possible
without the crucial functionality that is evidenced in the June 1998 version of Project AMPS. He points to the fact
that both Data Explorer and Brewers AMPS make use of a converter program that was probably written by the
same person. His conclusion that the source codes which form the ends of Data Explorer and Brewers AMPS are
different, finds support in the evidence of Bento. Bento said that he wrote the code which forms the front end of
Brewers AMPS in the Delphi programming language and that his code was derived from neither Project AMPS nor
Data Explorer.
Similarities that may exist in screen layout, column size, window appearance and dimensions are as a result of
the fact that both Data Explorer and Brewers AMPS use a screen layout that is derived from Project AMPS. The
similarity in the "look and feel" of the programs is further due to the fact that the programs aim to produce the
same functionality, and to the fact that the same programming tools (available in the Delphi programming language)
were used.
Unlawful competition
One of the points raised in limine by the respondent was that the applicant was not, on the case set out in the
papers, entitled to rely on unlawful competition as an additional or alternative cause of action. It was submitted on
behalf of the applicant that the applicant was not relying on "mere copying", but on misappropriation and filching by
the respondents of the products of the applicant's skill and labour.
The general principles of unlawful competition have been set out by the Appellate Division in Schultz v Butt
1986 (3) SA 667 (A) and Taylor & Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 (1) SA 412 (A) and are conveniently
summarised in The Concept Factory v Heyl 1994 (2) SA 105 (T) at 115CJ).
View Parallel Citation
In order to succeed in an action based on unlawful competition, the plaintiff must establish all the requisites of
Aquilian liability, including proof that the
Page 88 of [2004] 4 All SA 67 (C)
defendant has committed an unlawful act. In Payen Components SA Ltd v Bovic CC and others 1995 (4) SA 441 (A) at
453B Schutz JA stresses that
". . . in judging questions of unlawfulness, not only in this field, questions of policy may play an important part, and that
in the field of unlawful competition an important one is the need for free competition.
The lawfulness or unlawfulness of an act of competition may be determined by the application of certain further criteria
which include fairness and honesty in competition, which requires that regard be had to the boni mores and the general
sense of justice in the community."
It is important to emphasise once again what the applicant's case is and what it is not. The unlawfulness of which
the applicant complains is that the first and second respondent have appropriated a computer program which he
has developed without them having expended skill, time and effort, and that they are passing off the program thus
appropriated as their own. The applicant's case is not that he had made certain improvements to the first
respondent's program and that the first and second respondents have unlawfully appropriated those improvements
and included them in their software.
Having reached the conclusion which I have in connection with copyright, the question arises whether the copying
of something which was not protected by the Act, can be unlawful? In Schultz v Butt (supra) at 681B the following is
said in this regard:
"If that would be the main question the answer would be clear. Anyone may ordinarily make anything produced by
another which is in the public domain: One may freely and exactly copy it without his leave and without payment of
compensation."
This approach was adopted and followed in The Concept Factory v Heyl 1994 (2) SA 105 (T).
The interrelationship between unlawful competition and forms of statutory protection of intellectual property
rights such as copyright was further examined by Plewman JA in Premier Hangers CC v Polyoak (Pty) Ltd3
1997 (1) SA 416 (A). The learned Judge of Appeal refers to the "common thread" in intellectual property legislation
favouring a freedom to copy works which have been permitted to pass into the public domain (at 424C). He
concludes:
"Finally, it remains to say that in most foreign systems where unfair competition rules apply there appears to be a search
where relief is to be given for some special unfairness in that which has been done. This, all too frequently, is a difficult
task because it is hampered in a case such as the present by the vast differences in the amount of effort and skill which
is called for in the design of articles that would warrant statutory protection. This is acutely so where what is under
consideration are matters of shape or appearance.
In my view, it was considerations such as the foregoing that underlie the decision in the Butt case. The finding was that
copying per se was not unlawful. It was only the existence of extraneous factors that rendered the unsuccessful party's
conduct unlawful. Thus it appears to me that in our law, as in many of