Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Harms JA, Streicher JA, Mthiyane JA, Cloete JA and Lewis JA
• Judgment Date: 29 March 2006
• Citation: 2006 (4) SA 458 (SCA)
• Docket Number: 118/05
• Hearing Date: 15 February 2006
• Counsel: J H Roux and S van Zyl for the appellant. R A J Acton for the respondents.
• Court: Supreme Court of Appeal

Streicher JA:

[1] Anton Haupt, the appellant, applied to the Cape High Court for an J

Streicher JA

order interdicting the respondents in terms of the Copyright Act 98 of 1978 from infringing his alleged copyright in a computer A program known as Data Explorer, and also in certain tables (or database structures) and databases. The High Court held that Haupt's claim could not be sustained and dismissed the application. With the leave of this Court, Haupt now appeals against the High Court's judgment. B

[2] Haupt and the second respondent, Christopher Brewer, are brothers-in-law. Brewer used to be the managing director and Haupt the marketing director of Brewer's Almanac (Pty) Ltd (Brewer's Almanac). Brewer's Almanac did business as an advertising agency and also disseminated information of use to the advertising industry. C

[3] During 1998 the third respondent, Coetzee, was requested by Brewer's Almanac to write a computer program which could interrogate and manipulate what is known as AMPS (All Media Products Survey) data. AMPS data are research results produced by a media research company on behalf of the South African Advertising Research Foundation. AMPS data are based on market surveys done on a six-monthly D basis by way of questionnaires and are available in binary-column electronic format stored in a UFL file and captured on a compact disc. They enable one to determine, inter alia, whom the readers, listeners or viewers of particular newspapers, magazines, radio stations or television programs are, and who the users of various E products are. The information is useful, especially to advertising agencies, in the planning of marketing strategies.

[4] Coetzee was requested to write a program that would give the user the ability to select certain questions, extract the answers from the UFL file and display those answers in a meaningful way. He used a F computer program called Delphi to write the program which he called Project AMPS. To enable the selection of a question, the questions upon which the AMPS data were based had to be stored in a database. For this purpose Coetzee created a table. This was done by simply asking the G Delphi program to create a new table. The program allows one to determine the number of fields required and the extent of the fields. Haupt then undertook the task of filling the table with the questions contained in the questionnaire in respect of the AMPS97b data. Coetzee, H in the meantime, wrote a program that could read the data in the binary format supplied. The next step was to create the user interface or front end of the program, that is, that part of the program that determines what a user will see. Coetzee decided that the questions should be displayed in a 'tree' format and used the tree component of the Delphi program for this purpose. He then proceeded to write a program that could read the questions in the table (the questions database), populate the tree when the program was activated, allow the I user to select a question, and extract, calculate and display the data requested. By 21 June 1998 the program had developed to the extent that a tree could be populated from a questions database, a user could select one of the questions, and an answer, sometimes correct, sometimes wrong, could be extracted from the UFL file and be displayed on a monitor. J

Streicher JA

[5] On 31 July 1998 Haupt and Brewer parted ways and, from that date onwards, Haupt was no longer in the employ of Brewer's A Almanac. Thereafter, Coetzee, in terms of a prior arrangement with Haupt, continued to develop the program for Haupt exclusively. In terms of the arrangement Coetzee was to receive 20% of the gross sales of the program. B

[6] The next major development of the program after 21 June 1998 was the incorporation of a 'tree-preparer' program. Every time the program was loaded, it took time to populate the tree from the questions database. To overcome this problem Coetzee wrote a program called the tree-preparer program which could, from the questions database, prepare a tree populated in the format required and then save C it in a tree.txt file. He took out the link to the questions database and, thereafter, the tree.txt file, instead of the questions database, was used to populate the tree. Haupt testified that this development took place after 31 July 1998. His evidence in this regard was not disputed. However, when Coetzee testified, he suggested that the D development might have taken place before 31 July 1998. According to him, he established that he started working on a tree-preparer program on 5 or 6 July 1998. He could not say when he completed the writing of the program, but could say that it would have taken him about six hours to do so. In my view, Coetzee's belated and E half-hearted suggestion that the program might have been written before 31 July 1998 is not sufficient to cast doubt on Haupt's evidence in this regard. Coetzee also wrote a program which could search the tree view of the questions. It was not suggested that this was done before 31 July 1998. F

[7] The data in the UFL file was not sorted and, every time a question was selected, a search had to be done through the whole of the file. Quick access could, therefore, not be gained to a particular sector of the data. To overcome this problem Coetzee created an answers database and changed the existing program so as to pre-sort the answers contained in the UFL file, and to order and index them in a table or G database structure created as in the case of the questions database structure. Once this had been done the program had to be changed again so as to look for an answer to a selected question in the answers database, instead of the UFL file. This procedure had to be followed in respect of each set of AMPS data as it became available. The development took place at the beginning of 1999. At that time Coetzee H also created a weightings database. This was necessary because respondents to the questionnaires have a weighting which is used to determine their actual representation in the relevant population. Subsequently, various other database structures were added to the Data Explorer program. I

[8] Every six months, when new data was received, the Data Explorer program had to be changed from reading the answers file to reading the UFL file and, once this had been done, it had to be changed back again. To obviate these changes, Coetzee, in June 2000, created a new program (the converter program), separate from the Data Explorer program, to J

Streicher JA

do the conversion from the UFL file to the answers file. Coetzee described the effect of the development as follows: A

'So that meant that I could leave the Project AMPS program pristine, every time a conversion came I could just do my conversion with a separate program and finished, I didn't have to remember what I'd changed and all that kind of stuff.' B

He referred to the program as the Project AMPS program, although, by that time, the name of the program had been changed to Data Explorer.

[9] Coetzee left for the USA in October 2000. Before he did so, he worked full time for a period of two months on the further development of the program. During this period Haupt paid him R20 000 C per month. It was at this time that a new graphing tool was added to the program. This was done by purchasing a graphic server which was commercially available and by incorporating it into the Data Explorer program.

[10] The AMPS data, referred to as Teen98, Child99, AMPS99a, D AMPS99b and AMPS2000a, were all processed by Haupt and Coetzee and marketed by Haupt, together with the Data Explorer program. In respect of each set of data, a tree.txt file was compiled by the tree-preparer program from the questions table filled by Haupt, and the data contained in a UFL file was converted to an answers database and a E weightings database.

[11] On 26 March 2001 Coetzee, who, at that time, was still in the USA, made contact with Brewer by e-mail, stating, inter alia, that he had heard little or nothing from Haupt. This led to the following letter from Brewer to Coetzee on 4 May 2001: F

'Dear Byron,

. . .

There's something I'd like to discuss with you - but it must be kept strictly confidential and just between you and me - for obvious reasons.

I have been asked by several agencies to get busy on other database products, some of which would be impractical, but, more recently, SAARF G asked me if I would be able to produce a "Brewers AMPS Data Program".

Let me say, straight off, that I have absolutely no intention of developing a program for this - but I would be interested in coming to an arrangement with you where we would use the program you wrote to convert the SAARF data (we would then develop the front-end to make it look nice as well as H looking like our other products).

I . . . also believe there is room for another player in the market (Anton is obviously doing exceptionally well - in fact, he seems positively rich) and you, yourself, would not be compromised. I'll make that a little clearer if I can:

I need to use the program you wrote in order to import SAARF (AMPS) data into a Brewer's database (which Hank will write). For this you will earn a "royalty" or "commission" on sales. I

. . .

So here's my question to you:

Are you interested in allowing me to use your program for converting SAARF (AMPS) data into a database (which we will write) in return for a royalty?

. . . J

Streicher JA

Whichever is the answer, please do not discuss this with Anton. There is nothing devious in my saying that - it's A just that I don't want to create any family stress or tension (especially if your answer is "no").

There is no other reason for me not wanting Anton to know.

If we do go ahead...