25ft copy cats and the eroding influence of Schultz v B...

The waning influence of the 1986 case of Schultz v Butt seems clear from the latest High Court decision in Van der Merwe and Another v Els and Another (3279/08) [2008] ZAWCHC 31 (4 June 2008). For the uninitiated the Schultz V Butt cases involved copying of a hull of a catamaran, which was held to be unlawful. The cases arguably gave some form of recognition to a remedy of unlawful competition for copying of three dimensional utilitarian objects (in those cases the hull of a catamaran). In the present case counsel for the applicant relied heavily on Schultz v Butt in trying to show that his client's 25ft catamaran hull had been unlawfully copied by the respondent. The judge referring to observations by Dean (Handbook of South African Copyright Law), Justice Plewman (Premier Hangers v Polyoak (PTY) Ltd) and the S15(3A) amendment to the Copyright Act (see earlier posting here) concluded that the Schultz v Butt remedy "is of very limited scope":

"The inference seems irresistible, as submitted by counsel for the respondents, that the legal landscape has changed quite considerably since Schultz v Butt was decided more than twenty years ago. After all, how can the boni mores denounce as unlawful conduct that is specifically authorised by the legislature in s 15(3A) of the Copyright Act?"

In addition the judge distinguished the present case on grounds that the applicants had spent significantly less time developing the boat, than did Mr Butt; that the boat design had been protected by patents until 2003 which were now in the public domain; and the applicant's partnership had never produced the 25 foot boats on a commercially sustainable basis and that the application was not directed protecting existing goodwill but at preventing a competitor from trading.

In dismissing the application, he endorses Dean: "The unfairness and wrongfulness in the Schultz case in fact lies in the undue benefit which Schultz made of the expertise, effort and financial outlay of Butt and it is this principle which ought to apply in the area of the copying of three-dimensional technological objects."