AI copyright policy considerations for Botswana and South Africa – Compensation for starving artists feeding generative AI
AI copyright policy considerations for Botswana and South Africa – Compensation for starving artists feeding generative AI
Author Setso Dennis Mareka
ISSN: 2521-2591
Affiliations: Associate at Ramalepa Attorneys, Gaborone, Botswana
Source: South African Intellectual Property Law Journal, 2025, p. 3-21
https://doi.org/10.47348/SAIPL/v13/i2a1
Abstract
The balancing act which domestic intellectual property policy is now challenged to strike is between fostering growth in technological innovation and incentivising creative labour. Ordinarily, these two considerations should not be mutually exclusive, but generative artificial intelligence (Gen AI) has led to a line being drawn in the sand. On one hand, AI undeniably has the potential to exert a profound societal impact, an outcome which shouldn’t be unnecessarily stifled, as onerous barriers to data access would undermine the ideal objectives of copyright policy. On the other hand, creative labourers are still subject to the inherent peculiarities of their industry, which faces further disruption despite their works forming part of Gen AI training data. A few cases worldwide illustrate this standoff, wherein artists contend that automation threatens to disrupt an already precarious creative industry and seek, inter alia, compensation for the use of their works.
In light of these polarised viewpoints, a socio-legal and tech-neutral approach is required to analyse whether a balance could be struck in light of Botswana and South Africa’s copyright policies and whether artists could be compensated for this type of use. The legal basis for a claim of compensation will be ascertained first and shall entail determining the manner in which Gen AI infringes upon artists’ exclusive rights, and utilise protected works in a manner which would ordinarily warrant remuneration. This analysis shall be informed by a discussion on the polarising interests involved, the normative justifications for said copyright protection, and the corresponding rationales for its limitations.
Before concluding, this article shall evaluate the feasibility of recommendations for fair remuneration frameworks in the context of Botswana and South Africa. It will be suggested that, ideally, CMOs ought to utilise metadata and watermarking measures to trace their members’ works across training data sets and ultimately claim compensation on their behalf. However, it is ultimately found that said CMOs in these countries ought to drastically increase their technical ability to monitor online acts of infringement.
Convergence of intellectual property and competition law objectives for Africa: A TWAIL reconsideration of the copyright issues arising from the Sixth Amendment of the Nigerian Broadcasting Code
Convergence of intellectual property and competition law objectives for Africa: A TWAIL reconsideration of the copyright issues arising from the Sixth Amendment of the Nigerian Broadcasting Code
Author Damola Adediji
ISSN: 2521-2591
Affiliations: Doctoral Researcher, Center for Law, Technology & Society, Faculty of Law, University of Ottawa
Source: South African Intellectual Property Law Journal, 2025, p. 22-44
https://doi.org/10.47348/SAIPL/v13/i2a2
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Damola Adediji
Convergence of intellectual property and competition law objectives for Africa: A TWAIL reconsideration of the copyright issues arising from the Sixth Amendment of the Nigerian Broadcasting Code
South African Intellectual Property Law Journal, Volume 13 Issue 2, p. 22-44
https://doi.org/10.47348/SAIPL/v13/i2a2
Abstract
Enacting the sixth amendment of the Nigerian Broadcasting Corporation Code (NBC Code) in January 2020, Nigerian policymakers arguably had an opportunity for the first time to purposefully grapple with the complex and rigorous interaction between intellectual property rights and competition law. However, they missed this chance. In 2022, the Lagos Judicial Division of the Federal High Court struck down the sixth amendment to the NBC Code, finding that it had been improperly developed through a stakeholder consultation process dominated by copyright-intensive industries, which failed to engage the competition authority, and that the Code was in apparent conflict with the rights conferred under the Copyright Act. Before being struck down, the Code had attracted significant criticism from Nigerian intellectual property scholars and practitioners, primarily due to its inconsistencies with copyright law. By the Court’s ruling, the NBC Code and the copyright issues it generated could rightly be considered dead. However, the lessons learned in ‘how not to apply competition law principles in IP’ and the Euro-American ideology underpinning both IP and competition law remain. Therefore, this paper undertakes a critical and reflective mission by revisiting the copyright issues generated by the defunct code and exploring how a Euro-colonial copyright ideology should be confronted through a purposeful convergence of copyright and competition law in an African country like Nigeria.
The paper considers this mission necessary for several reasons. First, the issues present Nigerian policymakers with an opportunity to creatively and purposefully engage with the complex complementarity of IP and antitrust or competition law in the context of a developing nation. Second, the arguments raised in opposition to the Code, which ultimately led to its demise in court, aptly demonstrate the ideological stronghold of Eurocentric and colonial IP orthodoxy, as well as the recent influence of competition law in Nigeria. Third, global experiences, particularly in Europe and the Americas, demonstrate that IP and competition law issues frequently interact purposefully and progressively, specifically to achieve developmental objectives such as access to cultural and copyrighted content. Therefore, Nigeria and Africa must understand how to navigate this interaction by devising a customised strategy that works for them, rather than dismissing one in favour of the other, and which does not necessarily rely on Euro-American intellectual property or competition law orthodoxy.
The implementation of the fair use exception into South African copyright law in the age of artificial intelligence: A fever dream or a justified reform?
The implementation of the fair use exception into South African copyright law in the age of artificial intelligence: A fever dream or a justified reform?
Author Alvizo Miggels
ISSN: 2521-2591
Affiliations: Lecturer, Department of Private Law, University of the Western Cape
Source: South African Intellectual Property Law Journal, 2025, p. 45-72
https://doi.org/10.47348/SAIPL/v13/i2a3
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Alvizo Miggels
The implementation of the fair use exception into South African copyright law in the age of artificial intelligence: A fever dream or a justified reform?
South African Intellectual Property Law Journal, Volume 13 Issue 2, p. 45-72
https://doi.org/10.47348/SAIPL/v13/i2a3
Abstract
The Copyright Amendment Bill (‘the Bill’) seeks to introduce several changes to the copyright system; starting with the controversial introduction of the fair use exception to the South African landscape. This exception is used by jurisdictions such as the United States of America (US), thoroughly interpreted by courts to determine its parameters and allows for a broader list of uses of works ordinarily protected by copyright. Fair use is largely dependent on an array of open-ended factors, which have up until now been applied by courts on a case-by-case basis.
Critics of fair use cite legal uncertainty as the primary basis for their argument that South Africa should retain its fair dealing exception as it is currently formulated in the Copyright Act 98 of 1978. They further argue that fair dealing provides copyright holders with more control over the use of their works and view the list of acceptable uses of protected works under fair dealing as certain. Additionally, critics are of the view that, should fair use be introduced to the South African copyright system, it will be in direct contravention of the country’s obligations under the Berne Convention and the TRIPS Agreement.
There is, however, evidence that the fair use exception has been successfully applied in jurisdictions such as the US and Singapore , and thus judicial guidance and other examples from South Africa’s international counterparts could easily remedy these concerns. This article argues that the critics’ views on fair use are an exaggeration and a tactic to have South Africa remain complacent in the face of global advancements made in respect of technology.
This article argues that fair use should be introduced to the South African copyright system , and will show that while this exception may be new to this jurisdiction, it will not be difficult to implement and for the courts to navigate. It argues further that fair use will serve copyright holders more in a landscape riddled with uncertainty as a result of emerging technology such as artificial intelligence (AI).
Aligning Africa’s evolving copyright landscape with Agenda 2063: Lessons from Nigeria, Uganda, South Africa, and Kenya
Aligning Africa’s evolving copyright landscape with Agenda 2063: Lessons from Nigeria, Uganda, South Africa, and Kenya
Author Dorcas Chebet Koros
ISSN: 2521-2591
Affiliations: Researcher, Centre for Intellectual Property and Information Technology (CIPIT), Strathmore University
Source: South African Intellectual Property Law Journal, 2025, p. 73-107
https://doi.org/10.47348/SAIPL/v13/i2a4
Abstract
African nations collectively face significant imbalances in intellectual property (IP) flows, with most royalties and license fees departing for the Global North. Recent copyright legislative reforms in Nigeria, Uganda, South Africa, and Kenya seek to address these inequities, modernise legal frameworks, and ensure that creators and local industries reap the rewards of their innovations. While Nigeria’s Copyright Act of 2022, Uganda’s ongoing copyright amendments, South Africa’s Copyright Amendment Bill, and Kenya’s incremental reforms each illustrate a commitment to fostering economic growth and cultural preservation, they also highlight persistent challenges, ranging from limited enforcement mechanisms to inadequate public awareness and institutional capacity.
From the standpoint of the AU Agenda 2063, these reforms align with Africa’s broader vision of socio-economic transformation and emphasise the need to balance the rights of creators with the public interest. Equally, the African Continental Free Trade Area presents new opportunities for cross-border trade in creative goods and services, but also underscores the importance of harmonised IP standards to facilitate regional integration. Taken together, these national copyright reforms offer insights into how African governments can safeguard cultural heritage, spur creativity, and enhance business competitiveness; thereby advancing Africa’s economic, social, and technological aspirations under Agenda 2063 and the AfCFTA framework.