The legal nexus between AI-generated creations and intellectual property in South Africa

Abstract

This dissertation examines the intricate intersection between artificial intelligence (AI) and intellectual property (IP) law, focusing particularly on its implications for copyright and patent law both internationally and within South Africa. In recent years, the rapid evolution of artificial intelligence and its ability to generate creative works by simulating human expression is challenging existing legal frameworks and prompting reconsideration of long-established intellectual property principles. Questions emerge whether these AI-generated outputs are protectable at all, whether there is any infringement present during the input or output phases, and who, if any, should be held liable for possible IP infringement. A comparative analysis of foreign jurisdictions reveals divergent approaches to the copyrightability and patentability of AI outputs, and current South African law, like many others, appears ill-equipped to fully address the nuances of AI-generated content. Furthermore, this research delves into ethical considerations, such as the biases embedded within AI training datasets and the unauthorised use of artists' personality rights through deepfakes, and the broader issue of inadequate global regulation surrounding AI. These concerns are juxtaposed with a discussion on whether the possible inability to secure IP protection for AI-generated outputs, could deter investment and development in this field. Ultimately, this dissertation aims to contribute to the discourse on reconciling innovation and creativity with the need for legal safeguards in an AI-driven era.