Abstract

As a pervasive feature of modern society, the adaptation right in the context of infringement and fair dealing has frequently been a subject of heated debate for several years. However, the current Copyright Act 98 of 1978 does not adequately address either aspect. The power disparity between copyright owners and users makes it difficult for the user to determine when it is appropriate to pay for permission and when to use the work without permission, resulting in numerous legal debates over what is considered lawful or permissible use. Moreover, the complexities of copyright law and its application in the context of the various forms of adaptation set out in the Copyright Act (ie arrangement, transcription, translation and transformation) remain largely undefined, leaving those attempting to create a work of adaptation or resolve a dispute over one in a state of considerable uncertainty. Consequently, there are numerous gaps in South Africa’s legal system concerning adaptations and their role in legal proceedings. This is exacerbated by the absence of case law meant to provide clarification. Additionally, the exceptions and restrictions associated with the adaptation right are extremely limited. Blind SA v Minister of Trade, Industry, and Competition and the almost decade-long debate about the Copyright Amendment Bill indicate a need for reform in South Africa’s legal system concerning adaptations and their role in legal proceedings.

Abstract

This article analyses South African copyright laws, with reference to artificial intelligence (AI). It deals specifically with the authorship of copyrightable works as contained in the Copyright Act 98 of 1978. The Act provides that authorship vests differently, depending on the type of work in question ie a work recognised by s 2 of the Act. The article seeks to provide insight into the existing jurisprudence surrounding AI and copyright in the South African context. Moreover, it relies on prevailing local jurisprudence to show that South Africa may lack an adequate legal structure to tackle the future implications of conferring authorship on non-human entities. The article also briefly explores resolutions in other regions such as China and draws on Ginsburg’s legal tests for authorship. The article’s focus is primarily on South African law in its current state, with reference to other legal jurisdictions and the future.

Abstract

The increasing sophistication of artificial intelligence (AI) facial recognition models and the accessibility of photos online by companies and governments have amounted to the excessive misuse of facial surveillance systems. The government, the police and organisations have a long history of using AI facial recognition technologies to gather data on citizens without respecting their data and privacy rights. The government relies on national security and public safety to justify such gathering of data. Marginalised groups and people of colour are disproportionately affected by such surveillance. Data protection and privacy rights activists have called on governments to regulate facial recognition systems. It is also essential to establish AI oversight agencies with the responsibility to monitor the use of AI models and to ban such use when it breaches citizens’ data and privacy rights, and any other human rights.

The European Union’s AI Act is the first comprehensive regulation on AI. It provides a risk management framework with different rules for different risk levels: unacceptable risks, high risks; and limited or low-risk applications. In June 2023, the European Parliament voted in favour of a total ban on live facial recognition in public spaces. Although the new Act did not stipulate a full ban on live facial recognition surveillance, it provides that all high-risk AI systems will be assessed before being put on the market and throughout their lifecycle.

African governments have caught the AI bug but only a few African countries have an existing AI strategy; these include Mauritius, Egypt and Rwanda. It has been argued that international AI technologies and ethical deliberations are modelled without Africa in mind. Against this backdrop, it is more likely that Africans as people of colour will be subjected to AI ethical bias, privacy and data protection concerns, risks and harms. It is essential that African countries develop AI policies. Additionally, Africa should also take a strategic place in the ongoing debate on global AI regulation.