Authored By: Ramahana Mpho Fhatuwani
University of Venda
ABSTRACT.
The rapid proliferation of generative artificial intelligence (AI) presents a profound challenge to South Africa’s copyright framework, which currently fails to recognise or protect AI-generated content. This study argues that the Copyright Act 98 of 1978 is fundamentally incompatible with AI-driven creative processes. This leaves content creators without legal protection for their AI assisted works and creates significant legal dilemma. Through a doctrinal research method and a comparative analysis, this study examines the eligibility, authorship, and ownership of AI generated works under South African law. The study also highlightsthe Constitutional implications arising from the lack of protection. By drawing approaches from foreign jurisdictions such as China and the United Kingdom, this study makes recommendations to safeguard content creator’s rights, whilst promoting innovation and ensuring legal coherence in this digital era.
Keywords: Artificial Intelligence, Copyright Law, South Africa, AI-Generated Content, Authorship, Constitutional Right to property, Legal Reform.
1. INTRODUCTION.
The rise of generative Artificial Intelligence (AI) presents a fundamental challenge to South Africa’s Copyright law as the creative labour of content creators lacks sufficient legal protection. Content creators are increasingly using AI tools to generate monetised content on YouTube, Meta Platforms and TikTok.1 South African Copyright law fails to protect the rights of these content creators as it does not recognise AI-generated content.
With the rapid spread of AI and its economic potential, South African law ought to change its stance and start recognising AI within its Copyright Frameworks. This study argues that the current Copyright framework is incompatible with AI-generated content, creating a legal uncertainty by failing to recognise and protect the work and efforts of content creators, and potentially infringing on their constitutional rights.
To tighten the argument, this research employs the following research questions:
a. Is the current South African Copyright law compatible with modern, AI driven content creation trends?
b. Does AI-generated content qualify for Copyright protection under the existing legal framework?
c. If it does qualify for Copyright protection, who would be the rightful owner of the Copyright?
2. RESEARCH METHODOLOGY.
This study will employ a doctrinal legal research method by studying South Africa’s current Copyright legal framework, the different sources of law in South Africa pertaining to Copyright law. This study consulted the existing literature articles, blogs and books to establish the perspective of modern writers on the relationship between social media content generation and Copyright law in the context of generative AI.
After consulting literature, it then laid down several points to argue and employed legislation and case laws to support the argument. Complementing this, it then consulted foreign law across jurisdictions such as China and the UK, to seek possible answers to its research questions. By doing so it employed a comparative approach, comparing South Africa’s jurisdiction to other advanced jurisdictions in the context of Copyright law and generative AI in the media industry.
This multifaceted approach was necessary to establish the gaps or challenges brought against South African Copyright law by the advent of generative AI in the social media industry. Most importantly, it was necessary to adopt such an approach as it learns and obtains guidance from other jurisdictions.
3. THE SOUTH AFRICAN COPYRIGHT LEGAL FRAMEWORK.
A. The Constitution.
In South Africa, the Constitution is the supreme law of the country, any laws which are inconsistent with it are unconstitutional and invalid.2 By virtue of its supremacy, every other legislation or legal process, including the Copyright frameworks, must all be consistent with the Constitution.3 The concept of Copyright falls well within the Constitution because of the right to property. The Constitution provides that everyone hasthe inherent right to property, and no one may be arbitrarily deprived of such right except in terms of common law.4
The relationship between the Constitution and Copyright law stems from the law regulating Intellectual property.5In terms of South African law, a Copyright is meant to protect the right to property of a person who owns a creative work. In the context of AI generated content, this study argues that the content itself qualifies as a creative work, hence it is deserving of a Copyright protection under the Act pursuant to the Constitution.
This brings us to the case of Blind SA v Minister for Trade, Industry and Competition, heard in the Constitutional Court of the Republic of South Africa.6In this case, Blind SA, an organisation which represents people with vision impairments or blindness disability, approached the Con Court claiming that certain provisions of the South African Copyright Act are unconstitutional, for making provisions for literary and visual works, which did not accommodate visually impaired or blind people.
The Con Court ruled in their favour, by reason that the Copyright Act infringed on the Visually impaired or Blind users right to equality by not affording them an equal opportunity to access copyrighted literary or visual works whilst people with no such disabilities could access such works.
This case highlights just how much impact the Constitution can have on South African Copyright law. Hence, it ought to be a part of this study as it is an important part of the Copyright frameworks.
B. The Copyright Act.
Besides the Constitution, Copyright law is mainly found in the Copyright Act,7 with no other legislation catering promulgation on Copyrights. The Act envisages that Copyright is multifaceted concept which revolves around the main concepts of eligibility, authorship and Ownership, which will be disseminated below.
i. Eligibility.
For a creative work to be bestowed with a Copyright, it needs to qualify or be eligible for such legal status.8 The Act makes it clear that works which qualify for Copyright include works that are musical, artistic, cinematograph films or sound recordings in nature.9 The Act is not clear whether AI-generated content is eligible for Copyright. This creates a theme of uncertainty because AI generated content also includes content which is musical, artistic, cinematograph films or sound recordings in nature.
ii. Authorship.
According to the Act, the following are the requirements for a person to be a legal author of a creative work:
a. The person must have been the one who made or created the work, with respect to musical or artistic work.10
b. The person must have been the one who made arrangements for the creation of the creative works/output, with respect to a sound recording or a cinematograph film.11
This means that for a person to be recognised as the legal author of an creative work, the person must have satisfied the requirements illuminated above, for authorship. If the person did not satisfy the requirements highlighted above, it prima facie means that the person is not the legal author of the IP and cannot exercise a Copyright over it.
However, there is an uncertainty as to whether the requirements for authorship also apply to AI generated content, and if so, then can the author of AI generated content enjoy the benefits of monetisation from such content on social media. This study aims to dig deeper and find the implications that this would have on South African Copyright law.
iii. Ownership.
The Act envisages that ownership of a Copyright in relation to a creative work which originated in the country or for which arrangements were made in the country,12 will vest in the legal author of the creative work.13 This means that it is authorship which determines who gets to be the rightful owner of the Copyright. The owner of the creative work must have had a reasonable involvement in the creation of the creative work.
4. INTERPRETATION OF THE JUDICIARY: WHAT ARE THE COURTS SAYING?
The Court’s interpretation of AI-generated content in the context of South African Copyright law is quite limited and does not have many sources to refer to. However, there are some compelling cases such as the case of Mavundla v MEC, Department of Co-operative Government and Traditional Affairs KwaZulu Natal and Others, heard in the High Court of South Africa, Pietermaritzburg.14
In this case, the applicants’ legal representatives were found to have cited non-existent or bogus authorities in their application for appeal. The presiding officer, honourable E Bezuidenhout J (the court), found that the authorities used by the applicant’s counsel did not exist. As such the court, through a brief experiment also found that the authorities used by the applicant’s counsel were possibly generated by ChatGPT, a well-known AI application. Consequently, the court dismissed the applicant’s motion with costs to be born by the applicant’s legal representatives.
Another one is the case of Northbound Processing v SA Diamond Regulator, heard in the High Court of South Africa, Johannesburg.15 In casu, the legal team for Northbound Processing relied on AI generated case law and submitted them to the court as authority in support of their case. The court condemned the use of AI generated case law. In both cases, the legal representatives were not aware that the authorities they cited were in fact non-existent, they assumed that ChatGPT had obtained them from reliable sources.
The latter judicial phenomena may not be directly linked to Copyright law; however, they do send a message of how the South African judiciary reacts towards AI-generated content. They also highlight the consequences which can flow from the irresponsible and unaccountable use of AI generated content.
In the context of Copyright law, these cases are very much related to the principle of Authorship and Ownership, in that the legal owner of a Copyrighted creative work, must have had a reasonable involvement in the making or creation of the creative work. Even the legal consul in the latter cases, had the duty to verify that the authorities indeed existed and were relevant before citing them.
5. CHALLENGES FACING SOUTH AFRICA’S COPYRIGHT LAWS IN THE ADVENT OF AI-GENERATED CONTENT: EXPLORING THE GAPS IN THE FRAMEWORK.
A. Is the current Copyright legal framework compatible with AI-generated content?
The Copyright Act does not consider non-human creation like AI-generated content, its prevalence is on human made works only. This makes the current South African legal framework incompatible with AI-generated works.16 Therefore, content creators who use AI-generated works for their content are at a risk of being left out without any legal Copyright protection. As such, content creators may face a challenge wherein unauthorised people re-use their content and commercially exploiting it.
This incompatibility is potentially unconstitutional as it sets a direct limitation on the content creator’s right to property, by not offering their content protection from being recreated or re-used without their authorisation. It also directly violated their right to equality, by not offering non human works an equal opportunity to be afforded Copyright protections.17
B. Is AI-generated content eligible for Copyright protection in South Africa?
Another problem is that the Act makes provision for musical, literary, artistic, and cinematographic works, amongst others. According to the Act, these works are eligible for copyright. However, the Act does not make a provision regarding AI-generated works, leaving them in the grey area. It cannot be said with absolute certainty that AI-generated works, particularly those being used as monetised social media content, are legally eligible for Copyright.
The simple answer to the question of eligibility, is that AI-generated works are not currently eligible for copyright in terms of the Copyright Act. This ineligibility has quite some negative implications. Some of them being that content creators who invest their time, skill and effort in guiding generative AI to create audience-ready, monetised content may find their creative outputs being freely copyable without any legal remedy for the consequences.
C. Who is the legal author of AI-generated content on social media, in South Africa?
The Act ties ownership of creative works to authorship with relation to musical, cinematographic, recordings, and literary works. In the context of AI-generated content, it is unclear what the current legal position is on who should be the legal author of such content. Without a clear author, AI generated content which are circulating on social media, are effectively rendered authorless.18 This uncertainty is attributable to the incompatibility of the South African Copyright framework with AI-generated content. Not only does it potentially disincentivise and undermines the creative use of generative AI, but it also infringes on the creator’s constitutional entitlements to have their Intellectual Property protected.
6. SEEKING SOLUTIONS TO THE CHALLENGES: A COMPARATIVE ANALYSIS OF CHINA AND UK’S LEGAL APPROACH.
A. China’s legal Approach to AI-generated content.
China has taken a progressive step forward, offering a clear guidance to how AI-generated works can be positioned within a progressive legal framework. China adapted an approach allowing AI generated works to be eligible for Copyright protection, if the generative AI only served an assistant role rather than an executive role. According to the Chinese approach, the content creator using generative AI must have demonstrated satisfactory intellectual input to qualify as the author of the AI-generated works.
In the case of Li v Liu,19 decided in the Beijing Internet Court, a dilemma arose regarding an image created using Stable Diffusion, which is a generative AI that creates detailed images from text descriptions. The legal question in casu was if the image was indeed eligible for copyright protection. The Court found that the image was in fact eligible for Copyright protection, holding that the user employed skilful engineering and aesthetic decisions in the creation of the image.
As such, the image was not solely created by the generative AI, but by effort, skill and knowledgeable operation of the generative AI by the user. Therefore, making it the user’s own creation and making him the legal author of the image.
To complement the decision made in Li v Liu, in the case of Tencent v Shanghai Ying Xun,20 the Nanshan District People’s Court ruled that an AI-generated article was eligible for Copyright. The court held that Tencent had complete creative control over the process of creating the article, and generative AI was merely used as a tool to facilitate the process, thereby making Tencent the legal author of the AI-generated article.
B. UK’s legal Approach to AI-generated content.
In the case of Nova Productions Ltd v Mazooma Games Ltd, the England and Wales Court of Appeal sought to explore the definition of an author pertaining to Copyright in the context of AI generated works. The court held that the author is the person who makes the necessary arrangements for the creation of the creative works/output. In casu, the court applied the definition of an author to a factual scenario involving a user who created a computer-generated artistic work which consisted of bitmap files created by the user.
The court then ruled that the user had made the arrangements necessary for the creation of the final creative output, thereby making the computer-generated artistic work eligible for Copyright. To sum it up, these two distinct jurisdictions have some valuable lessons which South Africa can learn and possibly employ in its Copyright framework.
C. Lessons for South Africa: Key Takeaways.
Both China’s and UK’s jurisdictions indicate that Copyright frameworks can adapt to accommodate AI-generated works without abandoning the fundamental principles of authorship, eligibility and ownership. The cases of Li and Tencent demonstrate that AI-generated works for which the user of the generative AI exercises reasonable creative involvement or control, are eligible for Copyright.
Meanwhile, the case of Nova Productions illuminates us to the point that a user is eligible for authorship, if such user made the necessary arrangements for the creation of the final creative work, in this case the AI-generated work/output.
7. RECOMMENDATIONS.
A. Possible amendments to be made to the Copyright Act 78 of 1998.
As a strategy to possibly mitigate the impact of generative AI on South African copyright law, this study proposes that the Copyright Act can be amended as follows:
i. Considering AI-generated works in the authorship criteria.
This study recommends that the Copyright Act be amended to include AI-generated works/content in Section 1 (iv), which is the definition of ‘author’. This can be done by making a subsection specifically acknowledging authorship in AI-generated works, wherein the author satisfied any of the following criteria:
a. Making the necessary arrangements for the work to be created.
b. Having been reasonably involved in the creation of the AI-generated work.
ii. Including AI-generated works in the eligibility criteria.
This study also recommends that the Copyright Act be amended to include AI-generated works in Section 2 (1). By doing this, AI-generated works will be deemed eligible for Copyright protection, thus advancing the rights of content creators who make use of AI-generated works. This will be a valuable contribution towards recognising AI-generated works as protected and dignified creations which can only be recreated or re-used with the right authorisation, from the legal author.
8. CONCLUSION.
The rise of AI poses a significant challenge to South Africa’s Copyright framework, as a void or uncertainty exists within the Copyright Act. The Act fails to recognise AI-generated content as being eligible for copyright, and most importantly, it fails to include AI-generated content in the authorship provision. As such, AI-generated content falls within the grey area of South African Copyright law. Due to this, the general public can easily recreate, re-use or even re-cycle AI generated content, without any authorisation and without any legal consequences thereof. This study concludes that, if the law is duly amended to recognise AI-generated works for copyright protection, we would have a stronger, certain and more compliant social media society.
BIBLIOGRAPHY.
Legislation.
Constitution of the Republic of South Africa, 1996.
Copyright Act 98 of 1978.
Chinese Case Law.
Li v Liu (Beijing Internet Court, Case No. 0491/2023).
Tencent v Shanghai Ying Xun (Nanshan District People’s Court, Case No. 1122/2023). South African Case Law.
Mavundla v MEC, Department of Co-operative Government and Traditional Affairs KwaZulu Natal and Others 2025 (3) SA 534 (KZP).
Northbound Processing v SA Diamond Regulator (2025/072038) [2025] ZAGPJHC. Blind SA v Minister for Trade, Industry and Competition 22 [ZACC] 33.
Journal Articles.
AJ Van der Walt and RM Shay, ‘Constitutional Analysis of Intellectual Property’ (2014) 17 PER Dan Valeriu Voinea, ‘AI and Copyright-who owns AI generated content?’ (2023)10 SSERR (1).
Maria Van Der Merwe, ‘Constitutional Implications of AI-generated content’ (2022) 28 J SA Intell Prop L 89.
Sipho Nkosi, ‘AI and Copyright in South Africa: A legal void’ (2023) 40 SALJ 112. Law reports.
World Intellectual Property Organisation (WIPO), WIPO Technology Trends 2019: Artificial Intelligence (WIPO 2019) 45.
1 World Intellectual Property Organisation (WIPO), WIPO Technology Trends 2019: Artificial Intelligence (WIPO 2019) 45.
2 Constitution of the Republic of South Africa, 1996.
3 Constitution (n 2), s 2.
4 Constitution (n 2), s 25.
5 AJ Van der Walt and RM Shay, ‘Constitutional Analysis of Intellectual Property’ (2014) 17 PER 1.
6 Blind SA v Minister for Trade, Industry and Competition 22 [ZACC] 33.
7 Copyright Act 98 of 1978.
8 Copyright Act (n 7), s 2.
9 Copyright Act (n 7), s 2 (1).
10 Copyright Act (n 7), s 1 (iv) (a).
11 Copyright Act (n 7), s 1 (iv) (c) and (d).
12 Copyright Act (n 7), s 3 and 4.
13 Copyright Act (n 7), s 21 (1).
14 Mavundla v MEC, Department of Co-operative Government and Traditional Affairs KwaZulu Natal and Others 2025 (3) SA 534 (KZP).
15 Northbound Processing v SA Diamond Regulator (2025/072038) [2025] ZAGPJHC.
16 Sipho Nkosi, ‘AI and Copyright in South Africa: A legal void’ (2023) 40 SALJ 112.
17 Maria Van Der Merwe, ‘Constitutional Implications of AI-generated content’ (2022) 28 J SA Intell Prop L 89.
18 Dan Valeriu Voinea, ‘AI and Copyright-who owns AI generated content?’ (2023)10 SSERR (1).
19 Li v Liu (Beijing Internet Court, Case No. 0491/2023).
20 Tencent v Shanghai Ying Xun (Nanshan District People’s Court, Case No. 1122/2023).
