Artificial Intelligence and Copyright Law: Is South African Intellectual Property Law Prepared for AI-Generated Works?

INTRODUCTION

Since artificial intelligence (AI) technology progresses with great speed, creative processes across industries are deeply altered, which allows computer systems to produce original works of art, literature, music, and code without requiring much human labor. Great difficulties are brought by this technological evolution to old copyright frameworks, because traditional copyright frameworks were originally constructed by lawmakers only to defend human creativity and authorship. It has been observed that the South African Copyright Act 98 of 1978 builds a legal system focused strictly on human authorship and originality, though the Copyright Act 98 of 1978 also contains special rules for “computer-generated works” which were written before the modern artificial intelligence (AI) era existed. This academic paper evaluates if South African intellectual property law possesses enough strength to handle the legal standing of AI-generated works, while the study evaluates court decisions, statutes, and comparative perspectives. The author argues that while the present framework includes some useful provisions for computer-generated works, the current legal system fails to give clear directions about how much human effort is needed to obtain copyright protection in the current time of generative artificial intelligence (AI), which makes new legislative reform highly necessary.

THE COPYRIGHT FRAMEWORK OF SOUTH AFRICA

The Copyright Act 98 of 1978

In South Africa, copyright laws are mainly outlined in the Copyright Act of 1978. This law gives copyright owners specific rights, such as the ability to reproduce, adapt, and share their works. To have copyright protection, two key things are needed which are authorship and originality. The Act explains who qualifies as an “author” for various types of works. For literary, dramatic, musical, artistic works, and computer-generated programs, the author is defined as the person who took the necessary steps to create the work.[1] The Copyright Amendment Act 125 of 1992 included a provision that was quite forward thinking for its time, especially regarding computer-generated works. However, it was created before generative AI became common and assumes that a human is always behind the work. While the Act doesn’t clearly define what “original” means, South African courts have ruled that for something to be considered original, it has to come from the author and show a significant amount of skill, effort, or judgment.[2]

The requirement for authorship and originality

To have copyright protection, a work needs to be original and made by a human. According to the law, the “author” is the individual who first creates a literary or artistic piece. There’s no mention of any rights for non-human creators in this definition. This means only human-made works can receive copyright.[3] For a work to be considered original, it needs to come from the author and show some level of skill, effort, and judgment. South African courts have consistently connected originality to human effort, as seen in case law. With the increasing use of AI in creative and professional fields, it’s becoming clear that we need better legal guidelines. Right now, copyright laws require a human author and originality that comes from human input, which means that works generated solely by AI don’t qualify for legal protection. This gap calls for attention as technology continues to evolve.[4]

SOUTH AFRICAN CASELAW ON COMPUTER GENERATED WORKS

Payen Components SA Ltd v Bovic CC

The Appellate Division in Payen Components SA Ltd v Bovic CC[5] the court clarified the difference between computer-aided and computer-generated works. They decided that something is labeled as computer-generated only when a computer creates it completely on its own, without any human help. If a person contributes to the process, then it’s recognized as computer-assisted.[6] This distinction is really important because the Act treats copyright ownership differently for literary works that are created entirely by computers and those that are helped by computers.

Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd

The Supreme Court of Appeal in Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd[7] gave more clarity to the matter at hand. The court decided that a piece of work can only be considered computer-generated if it was created entirely by a computer, without any human involvement in the authorship.[8] When a human is involved in creating a work, it means the work is supported by a computer, not made entirely by one. This understanding fits with the definition of “computer-generated” as outlined in section 178 of the UK Copyright, Designs and Patents Act from 1988. The court talked about originality and emphasized that a work doesn’t have to be creative to be considered original.[9] It just needs to show that it wasn’t copied from something else and that it took a significant amount of skill, judgment, or effort to create. This clarifies what originality really means in copyright cases.

Waylite Diary CC v First National Bank Ltd

In Waylite Diary CC v First National Bank Ltd,[10] the court pointed out that the actual time and effort an author puts into their work is an important consideration in deciding if something is original. Ultimately, it comes down to a judgment about whether that time and effort leads to truly unique creations.[11] This case set the precedent that originality needs to entail more than mechanical or slavish imitation; there should be an application of mind. What all these cases represent is that South African law does recognize the difference between computer-assisted works and computer-generated works. The distinction lies in whether the human element retains authorship by using the computer as a tool, or whether there is so little human intervention that ascribing authorship becomes problematic. Anything that does not pass this meaningful human input test will not be protected by copyright.[12]

INTERNATIONAL PERSPECTIVES

United States: Thaler v Perlmutter

The US District Court for the District of Columbia in Thaler v Perlmutter[13] ruled that works created independently by artificial intelligence, with no human intervention, are not eligible for copyright protection under the Copyright Act. The Court stated that copyright protects only works of human authorship.[14] The work was created by an AI-generated artwork creation tool called the ”Creativity Machine”, which produced the work at issue, titled ”A Recent Entrance to Paradise”, without any creative direction or intervention from a human author. The court acknowledged that ”we are on the frontier of new developments in copyright as artists begin to include AI in their toolboxes to be used in the creation of new visual and other artistic works“, however, found that this case was not particularly complex because the plaintiff conceded that the work was generated by a computer with no human intervention.[15] The ruling reaffirmed copyright’s longstanding requirement that a work must be created by a human to qualify for protection.

United Kingdom: Nova Productions Ltd v Mazooma Games Ltd

In Nova Productions Ltd v Mazooma Games Ltd,[16] In the High Court case, it was determined whether computer-generated works were authored based on the provisions of section 9(3) of the Copyright, Designs and Patents Act 1988. The judgment stated that the author of the program that was used to create the game was the one who created the arrangement for the production of the work.[17] The above case is an example of how the individual who contributes the creativity to create the computer-generated material can be regarded as the author in the UK. This method may be of assistance to the South African courts when dealing with authorship of computer-generated material.

China: Li v Liu and Tencent v Shanghai Yingxun

In China, courts have adopted an increasingly progressive approach and recognised the copyright in AI-assisted works where there has been adequate intellectual effort by the human user. In Li v Liu,[18] the Beijing Internet Court held that the copyright in the AI-generated picture could be claimed since the user made intellectual effort through his prompt design and aesthetic judgment. In another case, Tencent v Shanghai Yingxun,[19] the court has upheld the copyright in the AI-generated article since authorship lies with Tencent, who controlled the creation process of the AI. While Chinese courts have already recognised the copyright in AI-assisted work, the copyright in purely AI-generated work has not been adjudicated upon yet.

THE COPYRIGHT AMENDMENT BILL AND AI

Legislative Reform

The Copyright Amendment Bill (B13-2017) seeks to bring a modern copyright regime to South Africa. The Bill includes a “fair use” exemption modelled after the American example, replacing the current “fair dealing” exemptions.[20] Nonetheless, the Bill was developed over a decade ago and does not include any explicit language relating to works produced using artificial intelligence technology or ingestion of AI training data. On 26 June 2026, the Constitutional Court issued its judgement concerning the Copyright Amendment Bill, endorsing the fair use doctrine but rejecting some exceptions for education purposes.[21] The constraints imposed by the Constitutional Court in the “fair use” provision of the Bill make it impossible to argue that exceptions in the Bill provide a legal basis for machine learning and training data ingestion.[22] This kind of usage is neither personal nor shares qualities of the listed educational or research purposes and fails the mandatory substitution effect test of the “fair use” provision.

THE GAPS THAT ARE IN THE CURRENT FRAMEWORK

The present legislation in place in South Africa fails to offer guidance regarding the following important aspects. Firstly the threshold of human involvement; the Act does not define the threshold of human involvement that is required for a work to be considered as computer-assisted instead of being computer-generated. With advanced AI technologies, the distinction between human directed and independent creations becomes increasingly difficult. Training and data ingestion by AI: There is no text and data mining exception or a statutory safe harbor for AI training under either the Act or the Bill.[23] This poses an issue for developers who use copyrighted works to train AI. Ownership assignment: The requirement of the Act for the author of computer-generated works being the one who arranged the necessary requirements may fail to take care of the cases when multiple parties are involved in generating AI created works.

IS SOUTH AFRICAN INTELLECTUAL PROPERTY LAW PREPARED

Strengths of the Current Framework

However, South African copyright legislation includes several pertinent provisions. The classification of computer-assisted works and computer-generated works in the case law serves as a basis for examining the problems related to AI-generated content. The need for a human author and originality is the core of copyright legislation that the majority of legal systems use. The fair use concept included in the Copyright Amendment Bill could become an appropriate approach in AI copyright cases, but only within AI training.

Weaknesses and Uncertainties

However, there are some challenges that South African IP laws do not have the capacity to handle in relation to AI-generated works. First, the absence of explicit regulations governing such creations poses a challenge since while the Act provides for ‘computer-generated works’, it was not made with consideration of AI systems that generate such creations through minimal human intervention. The cases which interpreted these provisions were made when modern AI did not exist. The second challenge is related to the extent of human contribution required. South African laws stipulate that works requiring minimal human intervention will not be covered by copyright; however, the question of how much human input will be sufficient in generating such creations has not been addressed yet. With time, the capabilities of AI will be enhanced further making it easier to produce such creations without the need for human input. The third challenge relates to the absence of provisions concerning data ingestion and training of AI. Unlike the European Union’s Directive on Copyright in the Digital Single Market that provides an exception from copyright to use of works in order to carry out text and data mining, South Africa does not provide any. Lastly, the Copyright Amendment Bill, although up-to-date in some respects, was born out of a world that did not consider generative artificial intelligence technology. As mentioned by the Constitutional Court, both the Copyright Amendment Bill and its judgment do not take into account generative artificial intelligence, which currently represents the biggest threat to the creative industry.[24]

Comparative Lessons

A comparative analysis shows that in most cases, there is human authorship as an essential element for securing copyright for AI-generated works. From the US approach to Thaler v Perlmutter case, it is clear that AI-generated works which does not contain any element of human intervention cannot be copyrighted. The UK’s interpretation in Nova Productions v Mazooma Games indicates that people who contribute creative inputs and make arrangements for AI-generated works could be regarded as authors. In China’s approach to Li v Liu and Tencent v Shanghai Yingxun cases, it becomes clear that copyright could accrue to users of AI technology with creative control over AI systems. South Africa would gain much by adopting a proper approach that sets out the level of human participation in relation to copyright in AI-generated works.

CONCLUSION

South African IP laws can be described as partly ready for AI-created works but need major changes to solve the problems raised by generative AI. There are some relevant provisions in the existing legal framework that provide for computer-generated works, and there is relevant case law that defines the distinction between computer-assisted and computer-generated works. However, the fact that there are no provisions related to AI-generated works, unclear human contribution threshold and absence of training exceptions in AI make legal uncertainties. The Copyright Amendment Bill is an excellent chance for updating South African copyright laws. However, it does not offer enough provision for solving AI-related issues. Parliament should use this chance to make a socio-economic impact assessment in order to measure the effects of the suggested exemptions and see whether a framework created decades ago is still adequate to the modern situation. In order to keep up with developing technologies, South Africa has to make a proper copyright framework that would take into account both the protection of human creativity and innovation promotion.

REFERENCE(S):

LEGISLATION

1. Copyright Act 98 of 1978 (South Africa)
2. Copyright Amendment Act 125 of 1992 (South Africa)
3. Copyright Amendment Bill (B13-2017) (South Africa)
4. Copyright, Designs and Patents Act 1988 (UK)
5. US Copyright Act 1976

CASELAW

1. Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill CCT 306/24
2. Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA)
3. Li v Liu (Beijing Internet Court, 2023)
4. Nova Productions Ltd v Mazooma Games Ltd [2006] EWHC 24 (Ch)
5. Payen Components SA Ltd v Bovic CC 1995 (4) SA 441 (A)
6. Tencent v Shanghai Yingxun (Chinese Court, 2023)
7. Thaler v Perlmutter 687 F Supp 3d 140 (D.D.C. 2023)
8. Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A)

SECONDARY SOURCES

Articles

1. Adams & Adams “Constitutional Court Delivers Landmark but Incomplete Copyright Ruling” (2026) https://www.adams.africa/stephen-hollis/constitutional-court-delivers-landmark-but-incomplete-copyright-ruling/ accessed 17 July 2026.
2. De Rebus “Authorship in the age of AI: Who owns AI-generated works in South Africa?” (2026) https://www.derebus.org.za/authorship-in-the-age-of-ai-who-owns-ai-generated-works-in-south-africa/ accessed 17 July 2026.
3. EnsAfrica “Generative AI and IP in South Africa: Navigating legal challenges” (2025)https://www.ensafrica.com/news/detail/10556/generative-ai-and-ip-in-south-africa-navigati/ accessed 17 July 2026.
4. GoLegal “Copyright in AI-generated works such as ChatGPT” (2023) https://www.golegal.co.za/copyright-ai-platforms/ accessed 18 July 2026.
5. Lex Africa “Copyright and Artificial Intelligence in South Africa: Rethinking Authorship” (2025) https://lexafrica.com/2025/08/copyright-and-artificial-intelligence-in-south-africa/ accessed 19 July 2026.
6. MJ Kotze Inc “AI-Generated Software & Copyright in South Africa” (2026) https://mjkinc.co.za/software-technology-law/ai-generated-software-and-copyright accessed 19 July 2026.
7. Mondaq “Constitutional Court Delivers Landmark But Incomplete Copyright Ruling” (2026) https://www.mondaq.com/southafrica/copyright/1816804/ accessed 19 July 2026.
8. Werksmans Attorneys “Copyright and Artificial Intelligence in South Africa: Rethinking Authorship and Originality in the Digital Age” (2025) https://werksmans.com/copyright-and-artificial-intelligence-in-south-africa-rethinking-authorship-and-originality-in-the-digital-age/ accessed 20 July 2026.

[1] Copyright Act 98 of 1978 (South Africa) s 1(1).

[2] ibid .

[3] Cornish  (n1).

[4] Derebus “Authorship in the age of AI: Who owns AI-generated works in South Africa?” (2026) par 3-5.

[5] Payen Components SA Ltd v Bovic CC 1995 (4) SA 441 (A), 450D-G (distinction between computer-aided and computer-generated works).

[6] ibid.

[7] Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA) – para 31 (definition of computer-generated works).

[8] ibid para 38

[9] Cornish (n 7) para 39

[10] Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A) – 649I-650D (originality as value judgment)

[11] ibid

[12] Cornish (n 10) 652G-653C

[13] Thaler v Perlmutter 687 F Supp 3d [140] (D.D.C. 2023) –  par 7 (human authorship as bedrock requirement)

[14] bid par 6-7 (narrow question of autonomous AI generation)

[15] ibid 13 (reference to new frontiers in copyright)

[16] Nova Productions Ltd v Mazooma Games Ltd [2006] EWHC 24 (Ch) – para 104-105 (authorship of computer-generated works under s 9(3) CDPA 1988

[17] ibid para 109

[18] Li v Liu (Beijing Internet Court  2023)- Judgment para 30-40 (copyrightability of AI-assisted works with human intellectual input)

[19] Tencent v Shanghai Yingxun (Chinese Court, 2023) – Judgment para 15-25 (copyright in AI-generated article with human creative control)

[20] Lex Africa article para 4-6 (analysis of works lacking meaningful human input)

[21] Copyright Amendment Bill (B13-2017) ss 12A-12D (fair use and exceptions)

[22] Constitutional Court judgment CCT 306/24 para 85-100 (fair use framework upheld)

[23] Mondaq article – paras 8-12 (analysis of Constitutional Court ruling and AI implications)

[24] Adams & Adams article- paras 5-8 (discussion of fair use clause limitations for AI training)