The rapid advancement of generative artificial intelligence ("AI") is transforming industries across the globe, and South Africa is no exception. From creative content generation to business process automation, generative AI is being adopted by South African enterprises, startups, and individuals alike. However, as with any disruptive technology, the legal landscape, particularly in relation to copyright, presents both challenges and opportunities. This article discusses the intersection of generative AI and South African copyright law, highlights key legal risks, and offers practical guidance for navigating this evolving field.
Territorial nature of copyright and enforcement
Copyright is inherently territorial, meaning that protection is granted by the laws of each individual country. There is no such thing as a "global copyright." Instead, international treaties such as the Berne Convention require member countries (including South Africa) to provide certain minimum standards of protection to works originating from other member countries. However, the scope, duration, and exceptions to copyright protection can vary significantly from one country to another.
Enforcement of copyright is also territorial. If infringement occurs in a particular country, the copyright owner must rely on the laws and courts of that country to enforce their rights. For example, a South African copyright owner whose work is infringed in the United States would need to bring an action in the US courts under US copyright law. Similarly, if a work is infringed in South Africa, South African law and courts would apply.
This territoriality means that a work may be protected in some countries but not others, and the outcome of copyright disputes can differ depending on the jurisdiction. It also means that compliance with copyright law in one country does not guarantee compliance elsewhere, especially given differences in exceptions (such as "fair use" in the US versus "fair dealing" in South Africa) and in the recognition of rights in AI-generated works.
Training vs. Generative AI
Generative AI refers to systems capable of producing new content—such as text, images, video, music, or code—based on training data.
The training of the AI on the other hand refers to the process by which an AI system learns to perform specific tasks or make decisions by analysing data. The training process varies depending on the type of AI and the task at hand, but follows a set of common steps, which include collecting the data and exposing the model to the data.
The distinction between using materials to train the AI model and the AI-generated outputs is quite important, and both have significant IP risks.
While AI models offer efficiency and creativity, they also raise important questions about intellectual property rights, particularly when AI systems are trained on or generate content that may be protected by copyright.
Two Key U.S. Cases
Two recent U.S. cases provide insight into how courts are grappling with the use of copyright works in the training of AI models:
- Bartz v. Anthropic PBC: In this case, three authors sued Anthropic for using their books to train its Claude AI model. The court ruled that using purchased (authorised) books for training was fair use due to the transformative nature of the use. However, using pirated (unauthorised) books was not fair use, and a trial on damages will follow.
- Kadrey v. Meta Platforms: Thirteen authors, including Sarah Silverman, sued Meta for using their books to train its Llama AI model. The court found Meta's use highly transformative and ruled it as fair use.
Both above cases related to the materials used to train the AI models and not AI-generated content. What is important to note is that the use of the copyright works to train Clause and Llama would have been infringement save for the "fair use" defence. This defence is not available under South African law and if the above cases were decided in South Africa (under South African law) the outcome would have been different.
Fair use vs. fair dealing: A comparative perspective
The U.S. doctrine of "fair use" allows for a broad, flexible defence to copyright infringement, considering factors such as purpose, nature, amount, and effect on the market. This enables courts to adapt the law to modern technologies, including generative AI.
In contrast, South Africa's "fair dealing" is more limited, permitting use only for specific purposes enumerated in the Copyright Act. This restrictiveness means that many uses of copyrighted material for AI training or generation may not qualify as fair dealing, increasing legal risk for South African users and developers.
South African Copyright Law and Generative AI
South African copyright law is primarily governed by the Copyright Act 98 of 1978 ("Copyright Act"). The law grants exclusive rights to the copyright owner, including the right to reproduce, adapt, and distribute the work.
When it comes to generative AI, two key legal questions arise:
- Training Data: Is it lawful to use copyrighted works as training data for AI models?
- AI-Generated Outputs: Who owns the copyright in works generated by AI, and can these outputs infringe existing copyrights?
Ownership of AI-Generated Content
Copyright arises automatically in original works such as literary, artistic, and musical works, provided certain requirements are met (such as originality and fixation in a material form).
The owner of copyright is generally the author of the work, who must be a natural person for most categories of works. However, for "computer-generated works," the law recognises the person who made the necessary arrangements for the creation of the work as the author. This is particularly relevant for AI-generated content: if a human exercises sufficient control or input in generating the work (i.e. the prompt used), they may be considered the author and thus the copyright owner. If no human author can be identified, the work may not qualify for copyright protection under South African law.
Why is this important you may ask. The Terms of Service of most AI platforms provide that the user is the owner of copyright in the AI-generated works. However, it is not that simple. Copyright ownership is a factual question and the platform owner cannot grant you ownership contrary to the law, nor can it transfer rights to you that it does not own.
Legal defences against copyright infringement claims
The rights conferred by copyright are exclusive and include the right to reproduce, publish, perform, broadcast, adapt, and distribute the work. Only the copyright owner (or someone authorised by them) may exercise these rights.
If a generative AI system produces content that is substantially similar to a copyrighted work, the user or developer could face infringement claims. However, several legal defences may be available under South African law:
- Fair Dealing: South Africa recognises the doctrine of "fair dealing," which permits limited use of copyrighted works for specific purposes such as research, private study, criticism, review, or reporting current events. Unlike the broader U.S. concept of "fair use," fair dealing is more restrictive and purpose-specific.
- Lack of Substantial Similarity: If the AI-generated work is sufficiently transformative or does not reproduce a substantial part of the original, infringement may not be established.
Risks of copyright infringement and practical strategies
The use of generative AI carries several copyright risks:
- Unknowing infringement: Be aware of the extent that your suppliers use AI to generate content and materials for you or your business. You may unknowingly use content that infringes copyright and would still be liable for the consequences thereof (including removal of the materials from your online and physical properties).
- Unintentional copying: AI models may inadvertently reproduce protected elements from their training data.
- Unclear ownership: The absence of clear authorship for AI-generated works can complicate licensing and enforcement.
- Third-party claims: Users and developers may both face infringement claims from rights holders if AI outputs are deemed infringing.
To mitigate these risks, consider the following strategies:
- Use licensed or public domain data: Ensure that the database is curated and is either licensed for such use or in the public domain.
- Implement technical safeguards: Use tools that detect and prevent the reproduction of protected content.
- Maintain transparency: Keep records of data sources and referenced materials used.
- Obtain legal advice: For high-risk applications, seek guidance on compliance with copyright law.
Other legal and practical considerations
- Contractual arrangements: Clearly regulate the extent to which content may be AI-generated and define ownership and liability in contracts with your vendors and suppliers.
- Data protection: Ensure compliance with the Protection of Personal Information Act ("POPIA") when using personal data in AI systems.
- Policy Developments: Monitor legislative and policy developments, as South Africa may update its copyright framework to address AI-specific issues.
Conclusion
Generative AI offers immense potential for innovation in South Africa, but it also raises complex copyright issues. By understanding the legal landscape, adopting risk mitigation strategies, and staying informed about global developments, South African businesses and creators can harness the power of AI while respecting intellectual property rights. As the law evolves, ongoing dialogue between technologists, legal professionals, and policymakers will be essential to ensure a balanced and forward-looking approach.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
