2023 saw a massive wave of interest in AI, and it is a dramatically growing industry – indicators suggest that the market size of AI is projected to grow at a compound annual growth rate of 36.6% from 2024 to 2030.[1] As an attorney specializing in intellectual property law in South Africa, I commented on the copyright in AI-generated works in April 2023, which remains relevant. A copy of that article can be accessed here.

It is worthwhile to revisit this issue in view of the recent Pretoria High Court case, Emisha Software (Pty) v. Servsol Software Solutions CC and Others (2024),[2] revolving around the ownership of a computer program. The court affirmed that in terms of the Copyright Act, authorship of a computer program vests in the person who exercised control over the making of the program, and that the author is usually but not necessarily the owner. For discussion purposes, there is an exception to the rule that the author is the owner, where the program was made during the author’s employment under a contract of service – ill advisedly, this exception is often relied on. Fortunately, there is a further exception, where the parties conclude a written agreement setting out the ownership of the copyright, which is the best course of action.

The recent case is a cautionary tale where the parties did not reduce a suitable agreement to writing. Ultimately the court, after wading through the murky facts, held that the originality of the program vested in the applicant as first author which exercised control over the program’s development. In view of my previous article, we can only imagine the further murkiness and complexity which would have resulted if the court was placed to decide on what genus of copyright was at issue. This is ever more important to consider as computer programs as often being developed with the assistance of AI, and arguably, where some programs are being developed by AI itself.

There is not a one-size-fits-all approach to effective policy and risk management as it relates to the use and ownership of AI, as there are many moving parts, such as the jurisdiction or jurisdictions and which laws would apply, the industry and company structure in question, and the operational and other legislative requirements at issue, to name a few. The policies may be structured so as not to limit development whilst ensuring that the risks are effectively managed. Attention must also be given to the terms and conditions of use of the relevant AI system or platform as these may dictate the ownership of any output generated using the system or platform.

The cliché may be tiring but remains ever true – it is important to review agreements and update policies to ensure that the risks are effectively managed, in order to mitigate the risks and encourage the company to embrace technological advancements responsibly.

[1] https://www.grandviewresearch.com/industry-analysis/artificial-intelligence-ai-market.
[2] https://www.saflii.org/za/cases/ZAGPPHC/2024/615.html.