Protecting Indigenous Knowledge in the Age of AI: A Legal Framework for Cultural Integrity

Abstract  

Emerging Artificial Intelligence (AI) technologies are posing significant challenges for the  preservation of Indigenous Knowledge Systems (IKS), languages of native communities, the  traditional stories, and songs. As AI makes and uses money from this cultural content, existing  laws such as Intellectual Property (IP) are failing to address this problem. These laws are  promulgated to protect single authors and not the collective culture of an entire community.  This article will provide an overview of why we urgently need new legal rules or policies to  prevent AI from unfairly making money and potentially changing IKS.  

Using South Africa as the core example, I will emphasise the risks such as cultural  appropriation, distortion, and ignoring the communities’ right to Free, Prior, and Informed  Consent (FPIC). Existing legislations do not adequately address this because they do not treat  IKS as a valuable asset that communities control and own together. The idea is that Indigenous 

people must be able to exercise effective control their own data. The central solutions should  include community-attribution right, mandatory consent and transparency. Ultimately, this  article calls for radical change in legal and ethical practices. The goal is to ensure that AI serves  as a mechanism for cultural revitalisation and economic fairness, enabling Indigenous people  to control their own future their own future in the era of artificial intelligence. 

Protecting Indigenous Knowledge in the Age of AI: A Legal Framework for Cultural  Integrity 

I Introduction 

The accelerated growth of Artificial Intelligence (AI), especially generative AI introduces a profound challenge to the established legal doctrines, particularly concerning Intellectual  Property (IP). It has also redefined how we create, share, and interact with information. Among  its most advanced features is the generation of the content that resembles or replicate human  creative ability including cultural expressions rooted in Indigenous Knowledge Systems (IKS).  Starting form recreating traditional healing rituals to generating ancestral proverbs, AI models  are progressively becoming capable of capturing the essence of Indigenous culture, such as  generating “Zulu” proverbs to mimicking San healing rituals. Although this might be perceived  as a remarkable technological advancement, it raises urgent ethical and legal questions. For  examples, who is the real owner of the AI generated indigenous content? Do communities have  adequate protection in place to safeguard their cultural heritage from digital misappropriation?  And what legal frameworks or policies exist? Or should exist to protect cultural integrity in the  modern era of synthetic intelligence.1 

This article will critically explore or examine the intersection of AI, Indigenous rights and  intellectual property focusing on the depth South Africa’s rich culture or heritage. It contends  for the creation of a reimagined legal framework that places community consent at the heart of  decision-making, cultural authenticity, and ethical AI development.  

II The Rise of AI Generated Cultural Content  

Generative models such as ChatGPT and DALL.E are equipped on vast datasets that often  include publicly available cultural materials. These models are capable of producing traditional  songs, generate images of indigenous attire, or simulate rituals. Although impressive, this  ability risks commodification and distortion. For example, an AI-generated “Zulu” prayer may  lack spiritual accuracy or substance yet be presented as authentic, thus eroding its cultural  integrity undermining community control.2 Contrary to the Western IP, IKS is often intergenerational, collective, and sacred, opposing the individualistic and temporal nature of  copyrights and patents.3 

III Legal Protections and Its Gaps  

South Africa has progressively taken steps to safeguard Indigenous knowledge through the  Protection, Promotion, Development and Management of Indigenous Knowledge Act 6 of  2019.4 This legislation acknowledges community-based ownership and provides mechanisms  for registration and benefit-sharing. Though it provides protection, it does not yet address AI generated digital or simulations reproductions. Traditional IP such as the South African  Copyright Act, is inherently unsuitable for IKS. This is because copyright requires human  author and “originality” a concept that does not fit well with AI outputs.5 Crucially, it does not  offer protection to knowledge shared by a community or has been had long been part of public  domain. Considering that cultural knowledge is commonly regarded as “open” or “public  domain” by default, AI models are able to use this data in their training processes without being  legally required to credit or compensate the source communities.6 

South Africa’s Indigenous Knowledge Act focuses on protecting IKS and establishing a  national record, providing sui generis (unique) framework for community rights.7 However,  the problem is that this Act was promulgated before widespread development of generative AI.  It is primarily concerned documentation and commercialising of existing, verifiable IKS, not  on the legal status of work created by AI. While the existing laws protects human creativity, it  is not strong enough to manage or address challenges of AI generated works and algorithmic  manipulations. International efforts, such as those at the World Intellectual Property  Organization (WIPO), these efforts are still continuing, but they have not yet created a legally  binding international agreement on safeguarding traditional cultural expressions.8 

Legislations such as the Protection of Personal Information Act 4 of 2013 (POPIA), in South  Africa is mainly concerned with on the private information of individuals.9 As a collective, cultural asset, IKS does not fit properly into this individual-based model. The emerging global  consensus on AI Ethics, such as the United Nations Educational, Scientific and Cultural  Organization’s Recommendation on the Ethics of AI, reinforces principles such as fairness,  transparency, and the protection of diversity. However, these are not legally binding regulatory  rules which creates enforceable rights for communities.10 

However, case law tries to offer guidance. As underscored in Biowatch Trust v Registrar,  Genetic Resources and Others, the Constitutional Court highlighted the public’s right to access  information regarding biotechnology and its impacts on indigenous plants. This landmark case  indirectly emphasised the tension between indigenous custodianship and commercial interests,  particularly regarding genetic resources such as the Umckaloabo plant, which has been  patented excluding community benefit.11 

IV Legal Challenges and the Digitalisation of IKS 

Indigenous Knowledge Systems are multifaceted institutions of practices, wisdom, and  innovations that have progressed over many generations within a cultural community and are  essential to their identity and survival.12 There are various legal challenges that arise from AI’s  use of Indigenous knowledge. These includes authorship and ownership, where AI generated  information lacks human authorship which leads to difficulties in assigning legal ownership. If  the source material is communal and oral, traditional, or cultural Intellectual Property  Frameworks fall short.13 Secondly, communities are rarely or not consulted when their  knowledge is simulated or digitised, violating principles of self-determination. Lastly,  platforms and developers profit from cultural simulations, while communities receive not only  no compensation but also no recognition.  

V Proposed Legal Frameworks  

To address or rectify the existing gaps in the legal system, South Africa should implement or  consider a multi-pronged legal reform. These alternative ways should include a community led licensing model. These models could be inspired by Creative Commons; indigenous  communities could develop licensing systems that clarifies how their knowledge may be used digitally.14 The Local Contexts Initiatives offers “Traditional Knowledge Labels” that tag  digital context with traditional usage rights, involving distribution requirements and consent  (Local Contexts, 2023). 

Additionally, amendments to Copyright Law as South Africa’s Copyright Act could be  amended to acknowledge communal authorship and extend protection to traditional and oral  works.15 This will serve as a tool to empower communities to challenge unauthorised digital  reproduction and provide ownership and provide ownership over AI generated simulations.  Furthermore, developers should disclose the sources of their training data including whether  the affected Indigenous communities were consulted or not. This aligns with the UNESCO’s  Recommendation on the Ethics of Artificial Intelligence (2021), which demands for  transparency and respect for cultural diversity. It is important that developers conduct cultural  impact assessment before deploying AI models that simulate Indigenous knowledge, similar to  environmental impact assessment. This is because, these would propose mitigation strategies  and cultural integrity.  

VII South Africa’s Role as a Legal Innovator  

South Africa has eleven official languages and diverse cultural traditions. The country is  uniquely positioned to set an example by leading this reform. Sections 30 and 31 of the  Constitution of the Republic of South Africa, 1996 affirms cultural rights, and the judiciary has  demonstrated an inclination to balance cultural and commercial interests.16 By integrating  digital ethics and Indigenous law, South Africa can lead to a development of a right-based  approach to AI.  

VIII Conclusion  

The capacity of AI to reproduce Indigenous knowledge is both impressive and fraught with  ethical challenges without proper legal protections, it risks exploiting communities and eroding  cultural integrity. However, with thoughtful and proper reform that is grounded in case law,  statutory protections, and principles, it has the potential of becoming a powerful tool for  empowerment and preservation. Therefore, scholars, law students, and policymakers must  commit to addressing this challenge. Through the development of an inclusive, community centred legal frameworks we can ensure that the digital future respects the integrity of ancestral  knowledge without appropriating it. 

Bibliography  

Constitution:  

Constitution of the Republic of South Africa, 1996. 

Case: 

Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14 

Legislation: 

Copyright Act 98 of 1978 (South Africa) Government Gazette 6325 (14 April 1978) Protection, Promotion, Development and Management of Indigenous Knowledge Act 6 of 2019 Protection of Personal Information Act 4 of 2013 

Treaty: 

UNESCO, Recommendation on the Ethics of Artificial Intelligence (adopted 23 November  2021) 

Journal Articles: 

Katabi M R, “Beyond Human Authorship: Rethinking Copyright Ownership in the Age of  Autonomous Artificial Intelligence” (2024) East African Journal of Law and Ethics 8(1)  <https://doi.org/10.37284/eajle.8.1.3580> accessed 28 October 2025 

Mabe P, ‘Keynote Address at the G20 Side Event on Languages and Cultural Resilience’  (Luthuli Museum, 23 October 2025) <https://www.gov.za/news/speeches/deputy-minister peace-mabe-g20-side-event-languages-and-cultural-resilience-g20> accessed 30 Oct 2025 Tsekea J T ‘The Position of Intellectual Property Systems in the Protection of Indigenous  Knowledge’ (2016) <https://www.scecsal.org/publications/papers2016/022_tsekea_2016.pdf>  accessed 27 October 2025 

Internet Sources: 

Creative Commons, ‘Generative AI – Opportunities, Concerns & Solutions from MozFest  2023’ (4 May 2023) <https://creativecommons.org/2023/05/04/generative-ai-opportunities concerns-solutions-from-mozfest-2023/> accessed 30 October 2025 

Republic of South Africa, Policy Framework for the Protection of Indigenous Knowledge  through the Intellectual Property System (Draft) (27 Nov 2017)  <https://www.gov.za/documents/policy-framework-protection-indigenous-knowledge through-intellectual-property-system> accessed 30 Oct 2025

World Intellectual Property Organization (WIPO), Intergovernmental Committee on  Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC):  Ongoing Work on International Instruments (2023) <https://www.wipo.int/tk/en/igc/> accessed 27 October 2025

1 Tsekea J T ‘The Position of Intellectual Property Systems in the Protection of Indigenous Knowledge’ (2016)  <https://www.scecsal.org/publications/papers2016/022_tsekea_2016.pdf> accessed 27 October 2025.

2 Peace Mabe, ‘Keynote Address at the G20 Side Event on Languages and Cultural Resilience’ (Luthuli Museum,  23 October 2025) <https://www.gov.za/news/speeches/deputy-minister-peace-mabe-g20-side-event-languages and-cultural-resilience-g20> accessed 30 Oct 2025.

3 Tsekea, ‘The Position of Intellectual Property Systems in the Protection of Indigenous Knowledge’ (n 2).

4 Protection, Promotion, Development and Management of Indigenous Knowledge Act 6 of 2019, s 7.

5 Katabi M R, “Beyond Human Authorship: Rethinking Copyright Ownership in the Age of Autonomous Artificial  Intelligence” (2024) East African Journal of Law and Ethics 8(1) https://doi.org/10.37284/eajle.8.1.3580 accessed  28 October 2025. 

6 Creative Commons, ‘Generative AI – Opportunities, Concerns & Solutions from MozFest 2023’ (4 May 2023)  <https://creativecommons.org/2023/05/04/generative-ai-opportunities-concerns-solutions-from-mozfest-2023/>  accessed 27 October 2025. 

7 Protection, Promotion, Development and Management of Indigenous Knowledge Act 6 of 2019, s 9.

8 World Intellectual Property Organization (WIPO), Intergovernmental Committee on Intellectual Property and  Genetic Resources, Traditional Knowledge and Folklore (IGC): Ongoing Work on International Instruments (2023) <https://www.wipo.int/tk/en/igc/> accessed 27 October 2025. 

9 Protection of Personal Information Act 4 of 2013, s 1.

10 UNESCO, Recommendation on the Ethics of Artificial Intelligence (adopted 23 November 2021).

11 Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14 [1]. 

12 Republic of South Africa, Policy Framework for the Protection of Indigenous Knowledge through the  Intellectual Property System (Draft) (27 Nov 2017) <https://www.gov.za/documents/policy-framework protection-indigenous-knowledge-through-intellectual-property-system> accessed 30 Oct 2025.

13 South Africa, Policy Framework for the Protection of Indigenous Knowledge.

14 Creative Commons, ‘Generative AI – Opportunities, Concerns & Solutions from MozFest 2023’ (4 May 2023)  <https://creativecommons.org/2023/05/04/generative-ai-opportunities-concerns-solutions-from-mozfest-2023/>  accessed 30 October 2025. 

15 Copyright Act 98 of 1978. 

16 Constitution of the Republic of South Africa, 1996 ss 30, 31.