Who Owns the Machine’s Imagination? Authorship and Copyright Protection of Al-Generated Works in South Africa, United States and the European Union

Abbreviation

AD                                                      Appellate Division

Al                                                        Artificial Intelligence

CJEU                                                   Court of Justice of the European Union

EU                                                       European Union

LLMs                                                  Large Language Models

SA                                                       South Africa / South African

SCA                                                    Supreme Court of Appeal

US                                                       United States

UK                                                      United Kingdom

WIPO                                                  World Intellectual Property Organisation

Introduction

In 2020, a digital artwork called ‘Suryast’, a photograph blended algorithmically with Vincent van Gogh’s The Starry Night was submitted for copyright registration in India, Canada and the US.[1] India initially recognised the Al tool as co-author before issuing a withdrawal notice while Canada granted copyright with the Al listed as co-author.[2] The US refused registration entirely, finding insufficient human creativity.[3] One work, three jurisdictions and three irreconcilable outcomes.[4] The divergence is not a curiosity of comparative law.[5] It is evidence of a systematic failure: copyright doctrine, built on the fundamental premise that creative works have human authors, has been confronted with a category of works for which that premise does not hold.[6]

Generative Al systems capable of producing literary, artistic, and musical works in response to a user prompt are now commercially abundant.[7] The legal frameworks governing ownership of their outputs are not adequate.[8] For the purpose of this article, Al refers to computer systems capable of performing tasks that would ordinarily require human intelligence, including the generation of literary, dramatic, musical and artistic works.[9] This definition draws on the WIPO’s Revised Issued Paper on Intellectual Property and Artificial Intellectual, which defines Al as a discipline of computer science in which machines and systems perform  functions with limited or no human intervention.[10]

Of particular relevance to copyright is the subset of Al as generative Al, which encompasses LLMs capable of producing text and diffusion models such as ChatGPT which is capable of producing images, audio, and videos.[11] These systems operate through machine learning training on vast datasets to generate outputs that may be entirely unpredictable even to their programmers.[12] It is this unpredictability that distinguishes Al-generated works from earlier forms of computer output: where traditional computer program executes instructions to produce a foreseeable result, a generative Al system synthesises patterns across its training data to produce something new.[13] This article adopts the WIPO distinction between “Al-generated” works, in which there is no human creative contribution to the output, and “Al-assisted” works, in which Al functions as a tool augmenting human authorship.[14]

Only the former category is the subject of this analysis. This distinction mirrors the existing doctrinal divide in SA and UK copyright law between computer-generated and computer-aided works, and it is central to the article’s comparative argument.[15] This article argues that SA’s Copyright Act, [16] premised on a human authorship paradigm, is doctrinally unprepared for Al-generated works and that comparative analysis of the US and EU responses reveals that legislative silence is not neutrality.[17] It is an invitation to legal uncertainty that SA copyright law can no longer afford to defer.[18] The article adopts a doctrinal research methodology, analysing  primary and secondary sources across three jurisdictions. The analysis is based on a literature review of these sources rather than empirical research.

Section II sets out the legal framework governing copyright in all three jurisdictions. Section III analyses the leading case law in each jurisdiction, including the SA computer-generated and computer-aided works jurisprudence.  Section IV critically evaluates the adequacy of existing law. Section V examines comparative perspectives and reform options. Section VI concludes by recommending a sui generis right for Al-generated works, explaining why deliberate legislative intervention is preferable to the current position of doctrinal inoperability, and identifying what SA must do to align its copyright framework with technological reality.

Keywords: Artificial intelligence-generated works, Copyright authorship, Human authorship requirement, Computer-generated works, South African copyright law, Originality, Comparative copyright law, Sui generis protection.

Existing Legislative Frameworks: A Multi-Jurisdictional Perspective

SA

Copyright in SA is governed by the Act.[19] The Act protects nine categories of works, including literary, artistic, and musical works.[20] To enjoy protection, a work must be original, reduced to material form, and authored by a “qualified person” defined as a SA citizen or a person domiciled or resident in the Republic, or a juristic entity incorporated under SA law.[21] Originality requires that the author applied substantial skill, labour and judgement to the work.[22] Critically, the Act defines the “author” a computer-generated work as “the person who made the arrangements necessary for the creation of the work”.[23] The scope of that phrase in the  context of generative Al has never been determined by a SA court.[24]

The US

In the US, copyright subsists in “original works of authorship” fixed in a tangible medium of expression.[25] Originality requires independent creation and at least a modicum of creativity.[26] The US Copyright Act does not define the term author, but the courts and the Copyright Office have consistently interpreted the term to require a human being.[27]  There is no statutory provision addressing Al-generated works.[28]

The EU

EU copyright law is harmonised through a series of directives, most relevantly the Information Society Directive.[29] The EU has no statutory definition of “author” applicable across all categories of works.[30] However, the CJEU has developed a harmonised originality standard through its jurisprudence, requiring that a protected work reflect the author’s own intellectual creation.[31] This standard is now applied uniformly across member states.[32]

III. Analysis of Judicial Decisions Across Multiple Jurisdictions

SA

SA courts have not directly addressed copyright in Al-generated works.[33] The closest authority is Haupt t/a Softcopy,[34] in which the SCA confirmed that originality requires substantial, not minimal skill, labour and judgement.[35] Of greater significance is Payen Components SA Ltd,[36] in which the AD distinguished between computer-aided works where the human is the author and the computer is a tool and computer-generated works, where the creative process is substantially autonomous.[37] The court awarded copyright in the former category and withheld it in the latter.[38] This distinction maps directly onto the challenge posed by generative Al, but the court did not develop criteria for determining when human involvement is sufficient.[39]

The US

The human-authorship requirement in US law was established as early as 1884, when the Supreme Court held in Burrow-Giles Lithographic[40] that an author is “the person who translates an idea into a fixed, tangible expression”.[41] The creativity requirement was confirmed in Feist Publications Inc, where the court held that copyright demands at least a modicum of creative expression.[42] In Thaler,[43] the Federal Circuit Court of Appeals confirmed that human authorship is a “bedrock requirement” of copyright, rejecting the argument that an Al system could be recognised as an author under the Copyright Act.[44] The reasoning was unequivocal: the statutory term “author” excludes non-human entities, and extending it to Al would require legislative intervention rather than judicial interpretation.[45]

The Copyright Office’s 2023 registration decision in Zarya of the Dawn applied these principles in practice.[46] The Office refused copyright for the Al-generated images in a graphic novel but granted copyright for the human-authored text and the creative arrangement of images.[47] The result is a patchwork: a single work, partially protected, with no principled boundary between the protected and unprotected elements beyond the degree of human creative contribution at each production stage.[48]

The EU

The CJEU’s originality standard has been developed through a line of cases that roots copyright firmly in human consciousness.[49] In Infopaq International A/S the court held that copyright protection requires that the work reflects the “author’s own intellectual creation”.[50] In Eva-Maria Painer, the court elaborated that the author must have made “free and creative choices” that express their personality, choices that stamp the work with a “personal touch”.[51] These requirements presuppose a conscious human agent making deliberate creative decisions.[52] They cannot, on any natural reading, be satisfied by an autonomous Al system operating without huma creative direction.[53]

The CJEU has not yet ruled directly on Al- generated works.[54] However, the trajectory of its case law strongly implies that purely Al-generated output, reflecting no human personality and involving no free creative choices by a human author would not meet the originality threshold.[55] This position has not been disturbed by the EU Al Act,[56]  which is silent on copyright authorship.[57]

Critical Evaluation

The Structural Problem

The human authorship requirement in copyright law is not a drafting accident. It is load-bearing: it connects copyright protection to the justificatory theories that give the system its coherence.[58] The labour theory holds that creators acquire rights over the products of their own effort.[59] The personality theory grounds copyright in the creator’s self-expression and dignity, values that cannot inhere in a machine.[60] The reward theory justifies copyright as an economic inducement to create: a rationale that does not apply to a system that generates works regardless of whether property rights attach to the output.[61]

Extending copyright to Al-generated works by identifying a human “arranger”, the prompter, the deployer, or the developer, does not solve this problem, it displaces it. [62] The US Copyright Office acknowledged the difficulty in its 2024 copyrightability report, concluding that prompts alone do not provide sufficient human control over Al output to constitute authorship, because the Al itself makes the substantive expressive decisions.[63] Where the Al determines what is expressed and how, the diction of human authorship produces incoherent results: partial protection in some elements, none in others, with no stable boundary between them.[64]

The Consequences of SA’s Silence

SA’s current position is the product of legislative inaction rather than deliberate policy. The Copyright Amendment Bill, despite years of parliamentary scrutiny, did not engage with Al authorship.[65] Submissions by academic commentators called for explicit clarification that human skill and effort are required for copyright protection, and for a provision modelled on the EU’s text and data mining framework.[66] Those recommendations were not adopted. The consequences is that purely Al-generated works in SA, those produced without sufficient human creative contribution fall into the public domain by operation of law.[67]  No legislature has chosen this outcome, it has arrived by default.[68]

Karjiker and Rousseau have concluded that paragraph (h) of the definition of “author” is effectively inoperable under existing SA law, with the result that Al-generated works attract no copyright protection not as a deliberate policy outcome, but as a consequence of ill-considered drafting that failed to include the supporting provisions necessary to give the section effect.[69] They further submit that this is also substantively correct: there is no adequate justification within copyright’s rationale for extending protection to Al-generated works, and investment in Al technology will not be affected by withholding copyright from generated outputs.[70] This article agrees with the doctrinal finding but submits that an accidental public domain outcome, however correct in principle, is neither stable nor sufficient as a long-term solution: it requires legislative confirmation, and the Copyright Amendment Bill provides the appropriate vehicle for it.[71]

This doctrinal finding does not, however, resolve the practical problem: without legislative confirmation of the position, creators, producers and investors cannot know with confidence who owns Al-generated outputs, whether those works can be licensed, or whether infringement is legally actionable.[72] The necessary arrangements language in section 1 of the Act provides a statutory hook for judicial development, and commentators have proposed a multi-factor test, examining the extent of the human’s skill, labour and judgement in directing the Al as a means of determining sufficiency of involvement.[73] However such development requires litigation that may take years to produce, during while the legal position remains uncertain.[74]

Comparative Perspective and the Path Forward for SA

What the Comparative Record Reveals

The US and EU responses offer instructive lessons, though neither provides a complete model. The US position, principled refusal to extend copyright to Al-generated works, with limited protection for human-authored elements has the virtue of doctrinal consistency.[75] Its limitation is practical: the spectrum of human involvement in Al-generated works does not lend itself to a bright-line rule, and the “sufficiently creative arrangement” standard leaves significant uncertainty.[76] The EU position has greater doctrinal clarity at the level of principle through CJEU case law but lacks legislative resolution.[77]

The EU Al Act is silent on copyright authorship. The European Parliament’s June 2025 draft own-initiative report insists that Al-generated content should remain ineligible for copyright while acknowledging the risk of inconsistent international regulation.[78] At Member State level, a Czech court in 2023 held that a simple image-generating prompt cannot constitute authorship, while Italy’s October 2025 legislation expressly protects human -authored Al-assisted works, leaving purely Al-generated works unaddressed.[79] The EU has identified the problem with precision, it has not enacted a comprehensive solution.[80]

Three Reform Options for SA

SA’s Constitution permits courts to consider foreign law when interpreting the Bill of Rights, and the intellectual property rights fall within the property clause of section 25.[81] The Copyright Amendment Bill process provides the appropriate legislative vehicle. Three reform options are available as outlined below.

Option 1: Clarify the “necessary arrangements” threshold

The most conservative approach is legislative clarification of what constitutes sufficient human involvement in directing an Al system for copyright to vest.[82] A statutory multi-factor test, examining the degree of creative direction, iterative selection, and expressive control exercised by the human would provide the certainty that the current open-ended formulation lacks.[83] This preserves the existing structure but depends on a legal fiction that a prompter is meaningfully the “author” of complex Al output.[84]

Option 2: Create a sui generis investment right.

A more coherent approach is a dedicated sui generis right, modelled on the EU’s database protection framework under Directive 96/9/EC.[85] Such a right would vest in the entity that made the substantial investment in generating the output carry no moral rights, last for a shorter term than copyright, and apply only to purely Al-generated works.[86] Ukraine has adopted a version of this approach for Al-generated images.[87] This model addresses the entrepreneurial interest in Al output without the fiction of human authorship, and it leaves the copyright framework intact for human-creates and Al-assisted works.[88]

Option 3: Deliberate public domain designation

The third option is to legislate expressly that purely Al-generated works enter the public domain, enriching the creative commons and preventing monopolistic concentration of Al-generated content.[89] This is defensible on copyright theory grounds and is, in substance, the position that Karjiker and Rousseau reach through their doctrinal analysis of paragraph (h): since the provision is inoperable and there is no adequate justification for extending copyright to Al-generated works, those works should not be protected.[90] The limitation of legislating the public domain expressly, however, is that it forecloses any incentive structure for the curation and development of high-quality Al-generated works and may disadvantage SA Al developers relative to those in jurisdictions offering some form of protection.[91]

A sui generis right, by contrast, produces the same substantive outcome, no copyright distortion, no fiction of human authorship, while providing the commercial certainty that an unlegislated public domain cannot.[92] Of these three options, this article submits that option 2 best serves SA’s interests. It is honest about what Al-generated works are and what they are not, provides the commercial certainty that investors and creators require, and does so without distorting the copyright framework that protects human creativity. The Berne Convention does not prohibit sui generis rights alongside copyright, and the WIPO survey on creative Al has itself acknowledged the need for new protective categories for authorless works.[93]

Conclusion

The Suryast artwork illustrates the problem with clarity. Three copyright systems, confronted with the same Al-generated work, produced three irreconcilable outcomes. SA, which has not yet been called upon to produce any outcome, should regard that divergence not as a reason to wait but as a reason to act.[94] This article has demonstrated that the human-authorship requirement embedded in SA’s, US and EU copyright law is a structural feature, not a drafting oversight. It cannot be extended to Al-generated works without distorting the doctrinal foundations that give copyright its coherence. The comparative record confirms this: both the US and the EU have struggled to accommodate Al-generated works within their existing frameworks, and neither has achieved a satisfactory resolution. SA’s legislative silence is not neutrality.

 It is an unexamined default whose consequences, the absence of any enforceable ownership interest in Al-generated works and the legal uncertainty that flows from it are real and growing.  The Copyright Amendment Bill process, however, frustratingly protracted, remains the appropriate vehicle for reform. It is submitted that SA should use it to enact a sui generis right for Al-generated works, modelled on the EU database protection framework, that protects investment without the fiction of authorship and preserves copyright’s human-centred rationale intact. This approach agrees with Karjiker and Rosseau that no copyright protection is the correct substantive outcome for Al-generated works, but departs from leaving that outcome to doctrinal inoperability: a sui generis right achieves the same result through deliberate legislative choice, with the commercial certainty and enforceability that an accidental public domain cannot provide. To legislate deliberately is always preferable to arriving at a legal position by default.

Bibliography

Case law

South Africa

Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and Others (118/05) [2006] Zasca 40; 2006 (4) 458 (SCA); 2006 BIP 317) (29 May 1995)

Payen Components SA Ltd v Bovic Gaskets CC and Others (448/93) [1995] ZASCA 57; 1995 (4) SA 441 (AD); [1995] 2 All SA 600 (A) (25 May 1995)

Foreign

Burrow-Giles Lithographic Co v Sarony 111 US 53 (1884) 58

Eva-Maria Painer v Standard VerlagsGmbH (C-145/10) [2010] ECR I-12533

Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] ECR I-6569 [37]

Thaler v Perlmutter 687 F Supp 3d 140 (DDC 2023) and Thaler v Perlmutter no 23-5233, 2025 WL 839178 (DC Cir Mar 18, 2025)

Legislation

South Africa

The Constitution of the Republic of South Africa, 1996

Copyright Act 98 of 1978

Copyright Amendment Bill B13-2017

Foreign

EU AI Act Regulation (EU) 2024/1689

United States Code: Copyright Office, 17 U.S.C. §§ 201-216 (1958)

Journal Article and Dissertation

South Africa

Caitlin Stransky, ‘A Legal Approach to Whether Al Generated Content Should be Protected Under Copyright’ (LLM Dissertation, University of Witwatersrand 2023) 3

Rhulani Siyabonga Nkosi, ‘South African Copyright Law and the Challenge of Al-generated Authorship’ (LLM Dissertation, University of Johannesburg 2025)

S Karjiker and G Rousseau, “Analysing computer-generated works in South African copyright law in the age of artificial intelligence” (2025) TSAR 727

Foreign

Sofia Karttunen, “ Copyright of Al-generated works: Approaches in EU and beyond” (2025) EPRS

Teesha Hemangkumar Soni, ‘Impact of Al Creations and IPR Framework’ (LLB Dissertation, The Maharaja Sayajirao University of Baroda 2024)

US Copyright Office, ‘Copyright and Artificial Intelligence Part 2: Copyrightable’ (2024)

World Intellectual Property Organisation, ‘Generative Artificial Intelligence: Patent Landscape Report’ (Geneva, 2024)