Generative Artificial Intelligence and Intellectual Property Management

Abstract:  

This is an analytical legal article. It evaluates the relationship between the law and the rise of  artificial intelligence, particularly as it relates to intellectual property and other creative  ventures have developed within the AI space. It will cover two cases that demonstrate the  potential conflict in the law between generative AI and assigning the piece to a particular  human author as well as show the importance of originality in the Intellectual Property legal  space. The article emphasises the need for laws to be made before particular legal issues arise  as a result of irresponsible and malicious usage of generative AI.  

Introduction 

Artificial Intelligence is everywhere. Some people like it and others hate it, but the reality is  that it is here to stay. The biggest tech giants in the world are investing heavily in the idea of  the “AI powered smartphone” and potentially incorporating AI into humanity’s everyday lives. Additionally, AI has become heavily used in the pursuit of creative work and can be seen daily  online. People often critique the use of generative AI to create something that humans could  ordinarily create. This makes one wonder about the legal implications of generative AI, and  asks the question, who has the right to the AI created image, song, or even movie belong to any  one particular person? To further understand the implications, one must understand what  intellectual property is, particularly in the South African legal system. Intellectual property1is  a set of intangible assets that are owned by a company or individual and includes artwork,  symbols, logos, brand names and designs. When a person creates something, it becomes a part  of their intellectual property. This article seeks to draw an analytical link between generative  AI and the potential issues that may arise in relation to intellectual property in South Africa. It  will establish what already exists in the law to protect intellectual property as well as seek to provide potential suggestions to curb the rampant use of AI and place limits on its use in order  to protect people, particularly those who are vulnerable due to their social status (poor,  uneducated, senior citizens and underage children).  

Legal Framework 

The Copyright Act is the main legislative source as it relates to intellectual property2. In section  1 of the act, it clearly defines an author of a literary, music or artistic work to mean the person  who first makes or creates the work. In the traditional sense, this is a straightforward definition  and could not be interpreted in a way that would result in unwarranted outcomes in court.  However, when linked with the use of AI, the lines begin to blur when we want to figure out  who the author is of an artificially made song, picture or even book. This is particularly the  case when it comes to music. A real-life example of this is from an app called “Suno” that has  been advertised everywhere on the popular entertainment app, TikTok. With an app like Suno,  what used to take time, creativity and effort can now be created in a matter of a few minutes.  However, in order for that to work, the human user needs to input a prompt to essentially tell  the AI bot what it is that he seeks to create.  

Now in the legal context of creating music, the artist is the author of the song which aligns with  the definition of an author in the Copyright Act. It is difficult to pinpoint fairly who the author  is when using AI. It may be the person who created the song using Suno, it may be the person  who programmed the generative app to be able to make songs, or it could be the AI bot itself.  

Judicial Interpretation  

The cases of Payen Components SA Ltd v Bovic CC3and Brewers Marketing Intelligence (Pty)  Ltd4unpack and show the distinction between computer-aided works and computer-generated  works. 5In the Payen case, the issue was related to intellectual property of a printed computer  programme that is classified as a “literary” piece in the law, and whether the programme  belonged to the appellant or respondent. The computer program’s main task was allocating new  reference numbers in place of the older numbers that were there beforehand. A significant  portion of the data storage creation happened in the late 1960s to the early 1970’s by the time the case was heard in court. This shows that the computers and other general technology used  was not as straightforward as it may be in our modern time and, as the court held, “… a  significant part was formulated manually”. The court further held that when one does  thoroughly analyse the facts, one will find that “… the preparation of the new English catalogue  involved much labour and at least some skill”. The court then further clarified that for a  copyright to legitimately exist, it must be possible to identify a human author. Within the  context of generative AI songs, art and other literary texts, who is the human author? These are  the potential conflicts within the law that we must revisit before things get out of hand. The  court went on the distinguish between something that is “computer-aided” and something that  is” computer generated”. Something that is computer aided is when the computer is a mere tool  in the process of creating something else. When something is computer generated, the work is  mainly done by the computer itself with little human input and without expenditure of  significant human skill. The Payen case demonstrates the importance of identifying the human  author and further shows how people may attempt to take advantage of someone else’s hard  work.  

The Brewers case emphasizes the originality standard when evaluating intellectual property  cases. The appellant, Haupt, had employed the first and third respondents to develop “… a  program that could read the questions in the table…, populate the trees when the program was  activated, allow the user to select a question and extract, calculate and display the data  requested.” This program later grew to develop to the point that it essentially became an app  on the monitor screen of their computer. The court held that work can be considered to be an  original if it was not copied from an existing source. Additionally, its production must have  required a substantial amount of skill, judgment, or labour. The case referred to international  law surrounding the originality standard. In the CCH Canadian Ltd. V Law Society of Upper  Canada6it was held that an original work requires the author’s exercise of skill and judgement.  They were also able to distinguish when the exercise of skill and judgment could be  characterised as a purely mechanical exercise, something that just anyone can do.  

Critical Analysis & Suggestions  

One can see that when people use generative AI, it highly likely that their work with the AI  was purely mechanical and does not require extensive skill and knowledge to make it work the  way the user may have wanted it to. It is those who made the generative AI app itself who had to use extensive skill, knowledge and judgement to bring the app to life. However, the next  issue relates to protecting those most vulnerable when it comes to their use of the internet.  South African laws surrounding AI in general seem to be behind or non-existent7. There is a  need to protect people online because they have risks of believing misinformation that looks  hyper realistic and losing money to scammers who may have older people believe that they  have relatives who are in danger. There is also a need to ensure creative integrity in the creative  industry. One cannot get away with destroying or deeply scarring someone’s life and reputation  because of irresponsible use of generative AI. 

Lawmakers and legal experts need to have the skills to spot potential clashes in the law as the  world around them develops and changes, particularly in relation to technological  advancements that just anyone can use and take advantage of. In early 2026, ChatGPT8is set  to launch adult mode which will likely allow the chat bot to engage in sexual conversations  and generate AI pornographic content. It is essential that there are laws set in place to set  limitations on the use of the app in a way that protects our communities at large and lowers the  risks and likelihood that someone can be taken advantage of in such an inappropriate context.  Senior citizens, children and those who are generally uneducated are the most vulnerable and  law needs to be there to protect them against malicious users of generative AI.  

Conclusion 

When one analyses the existing laws that could potentially be used to protect people from being  abused through the malicious use of generative AI, South African law needs to be developed.  There needs to be more direct laws and acts that can ensure the safe and legal use of generative  AI. The Intellectual Property aspect of the law seems to have sufficient law and case law to  distinguish when there is a legitimate author of a seemingly original piece.  

Reference(S):

Primary Sources  

1. Cases 

CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII),  [2004] 1 SCR 339. 

Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd. and Others  (118/05) [2006] ZASCA 40. 

Payen Components South Africa Ltd. v Bovic Gaskets CC and Others (448/93)  [1995] ZASCA 57. 

2. Legislation 

Copyright Act 98 of 1978. 

Secondary Sources  

1. Internet Sources  

Rajesh, ChatGPT’s long-rumored Adult Mode now has a launch window,  Gizmochina (Dec. 14, 2025, 11:37AM), https://www.gizmochina.com/2025/12/14/chatgpt-adult-mode-launch-2026- age-verification/. 

Werksmans, Copyright and Artificial Intelligence in South Africa: Rethinking  Authorship and Originality in the Digital Age, Polity (Aug. 15, 2025, 11:03AM), https://www.polity.org.za/article/copyright-and-artificial intelligence-in-south-africa-rethinking-authorship-and-originality-in-the digital-age-2025-08-15.  

Yeukai Mupangavanhu, Generative AI and South Africa’s intellectual property  law: Exploring a balance between protectionism and innovation, Scielo South  Africa (Dec. 25, 2025, 08:07AM), https://www.gizmochina.com/2025/12/14/chatgpt-adult-mode-launch-2026- age-verification/. 

1 Guide on Intellectual Property, SME South Africa (Jul. 5, 2024, 10:25AM), Guide on Intellectual Property |  SME South Africa. 

2 Copyright Act 98 of 1978.  

3 Payen Components South Africa Ltd. v Bovic Gaskets CC and Others (448/93) [1995] ZASCA 57.

4 Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd. and Others (118/05) [2006] ZASCA 40. 

5 Werksmans, Copyright and Artificial Intelligence in South Africa: Rethinking Authorship and Originality in the  Digital Age, Polity (Aug. 15, 2025, 11:03AM), Copyright and Artificial Intelligence in South Africa: Rethinking  Authorship and Originality in the Digital Age. 

6 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339. 

7 Yeukai Mupangavanhu, Generative AI and South Africa’s intellectual property law: Exploring a balance  between protectionism and innovation, Scielo South Africa (Dec. 25, 2025, 08:07AM),  https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2077-49072025000100002. 

8 Rajesh, ChatGPT’s long-rumored Adult Mode now has a launch window, Gizmochina (Dec. 14, 2025,  11:37AM), https://www.gizmochina.com/2025/12/14/chatgpt-adult-mode-launch-2026-age-verification/.