Abstract

As we enter the Fifth Industrial Revolution, the exponential growth of technology has infiltrated all aspects of human life. From an intellectual property (IP) perspective, technology and artificial intelligence (AI) is now being used to produce various works, such as literary, artistic and musical items. IP has always been an umbrella term to describe products of the ‘human intellect’. It is thus debatable whether a work created with AI, as opposed to ‘human intelligence’ is subject to IP protection. In South Africa, for copyright to subsist in a work, it must be original, exist in a material form, and be ‘authored’ by the ‘qualified person’ or published in South Africa or a Berne Convention State. The question arises who is the author of a work produced from AI? Is it a human, or is it a computer program, and is such a work deserving of copyright protection? Several courts in the United States of America have considered this question and have held that works created by AI are not subject to copyright, as it lacks ‘human authorship’. Similarly, the United States Copyright Office has rejected copyright applications for works created by AI. Across the pond, the United Kingdom has taken a different view and has adopted the approach of protecting works derived from AI.
In South Africa, the position is unclear, and our courts have yet to consider the issue of whether copyright subsists in an AI-generated work. As the use of AI grows domestically and internationally, clear rules need to be established to govern this sector of IP, in particular, to what extent, if any, works produced from AI derive copyright. Accordingly, laws may need to be developed to appropriately determine the amount of human input and intellect required to qualify the user of an AI-generated product as the author of such a work, and the scope of protection for such works. The time may have arrived for IP laws, or the law in general, to be re-examined and developed to regulate, incentivise and protect future AI innovations and creations.