AI and Copyright
Artificial Intelligence (‘AI’) is becoming more and more prevalent in the daily lives of South Africans, but what relevance does it have in copyright law? How does the use of large language models (‘LLMs’) like ChatGPT and Gemini in generating media affect your rights as a copyright owner? This article seeks to provide a brief overview on the current global and national responses to the looming threats and opportunities of AI in the copyright landscape.
THE LAW IN SOUTH AFRICA
Presently, no official law exists to govern AI’s interaction with copyright, nor is any new law proposed that seeks to deal with the matter. Even the Copyright Amendment Bill, which seeks to handle other pressing matters in copyright law, is silent on AI. However, when looking at other legislation, the following conclusions can be drawn.
AI AUTHORSHIP
AI in itself cannot be considered a copyright owner for the purposes of copyright law because it does not qualify as an author under the Copyright Act 98 of 1978. The Act envisions an author as being a ‘qualified person’, which could either be a standard person resident/domiciled within South Africa, or a juristic person (that is, a company or close corporation) incorporated under South African law. AI does not fit neatly into either of these categories – after all, AI programs are not corporate entities but rather computer systems potentially managed by natural or juristic persons. Thus, while AIs might themselves be protectable under copyright law as computer programs or literary works, they likely cannot be afforded the title of author of a work.
What is yet to be decided by South African courts, however, is whether the output of an AI (for instance, a picture) generated by human input (such as typed-out instructions) can be copyrighted. In South Africa, there are three requirements for copyright to vest in a work: the author of the work must be a qualified person, the work must be reduced to a material form, and the work must be original. Originality in particular would be difficult to establish in the case of AI-generated work because the work is not, per se, original. Rather, it is crafted through pre-existing data to which the AI has access and which the system has deemed to be relevant according to the provided instructions. This means that the output of AI will always be a sophisticated collage of similar works. That being said, if a court finds the recombination of prior works to be sufficiently original, there is a very real possibility that copyright could vest in an AI-generated work.
Though the relationship between AI and copyright in South Africa is presently unclear, given the popularity of AI, it is likely that a matter will arise in which the courts or legislature will be forced to confront the matter head on. Until then, for any further copyright and AI enquiries, please contact Xuba and Associates Attorneys Inc.