In 2016, the world witnessed an artwork being created by a 3D printer, which analysed hundreds of well-known Rembrandt paintings and used machine and deep learning techniques to mimic how Rembrandt used to paint. This task was a collaborative effort but ultimately it was the AI machine that created the work. What are the legal implications of this? And how might they change in future? To find out, we spoke to Fatima Ameer-Mia, Director in the Technology, Media, and Telecommunications practice of law firm Cliffe Dekker Hofmeyr.

    Who owns AI?

    The legal position around who ‘owns’ the work created by AI is interpreted differently in various jurisdictions. The US Copyright Office will register an original work of authorship, provided that the work was created by a human being, and will not register works that are created either randomly or automatically without any creative input or intervention from a human author. Similarly, in 2012, the Federal Court of Australia declared that a work which is generated with the intervention of a computer could not be protected by copyright because it was not produced by a human. The position in South Africa is even less clear, but essentially, the Copyright Act defines an author in relation to various works as the person who exercised control of the work or the person who was the author of the work, but a ‘person’ is not defined in the Copyright Act. And so, we look to the general rules of interpretation, and a literal meaning of a ‘person’, which the Oxford English Dictionary defines as a human being, which is regarded as an individual.

    How else could this be interpreted?

    Legally, a person is both a natural and a juristic person. And in terms of the Copyright Act, both natural and juristic persons would be eligible for ownership rights. So it’s difficult to just say that a machine could ever definitively be the author of a work. But my view is that the intention of the Copyright Act was for legal persons, which are either natural or juristic persons, to receive protection. Also, the Copyright Act was drafted in 1978 so it’s unlikely that the legislature would have anticipated this concept of AI and technology when drafting these provisions. It’s also unlikely that the intention of the legislature would be for a machine to individually own copyright. But if the machine is truly autonomous, then the work would technically be original and not commissioned, because the work would be created by the machine from a series of data inputs. In some instances, the company or the person who feeds the data inputs may not actually know what the output will be. So the work may therefore be an incidental creation. However, in other instances, the work may be commissioned, and the copyright would then vest with the person who commissioned the work. What’s clear is that policy and laws have not kept up with the rapidly changing technology landscape. And this ownership conundrum is just an example of a legal question to which there’s no exact answer and it would largely depend on the facts and on the circumstances.

    What’s the key takeaway businesses should know?

    The written code, which encompasses both source code and object code, would be categorised as a computer program under South African copyright law. This states that ownership of an original work is held by the authors of the work. It’s therefore critical to identify who the authors are in respect to a computer program. The Copyright Act says that the author is the person who exercises control over the making of the computer program. So when the work is created in the course and scope of an employment relationship, whether it’s under contract of employment or apprenticeship, the employer will hold the copyright. For example, if a company commissions a developer to create an AI algorithm, the author (and therefore the owner of the copyright) would be the company that commissioned the work, not the developer (unless there’s an agreement that provides otherwise). But depending on the type and form of the technology, there are other ways to protect one’s intellectual property interests, including non-disclosure agreements, trademark protection, as well as patent protection.

    Will robots ever have rights?

    The way that our law currently stands, I don’t think so. And I don’t necessarily think it’s something we’ll see in our lifetime. Robots are still ultimately created by humans so we will always have a degree of autonomy over AI. And the way that AI is currently regulated is still with regards to either the person or the company which exercises control over it. However, as policy and law develops, it is not inconceivable that the law could develop in a way that gives rise to robotic rights (although probably not in our lifetime).

    How should AI be governed?

    The issue of how one regulates AI without stunting its possibilities is one that policymakers around the world are currently grappling with. And the fact that there’s no universally-agreed definition or single understanding of what AI is makes it difficult to regulate. It’s for this reason that policymakers globally have been reluctant to regulate it. And in many instances, as the saying goes, no regulation is often better than bad regulation. So, in the face of this conundrum, the general approach for countries has been to adopt national AI strategies, each of which focuses to a varying degree on research and talent development, education, ethics, and regulation, just to name a few. At present, 23 countries have formally adopted national AI strategies, and the two African countries on that list are Kenya and Tunisia.

    What about South Africa?

    South Africa doesn’t have any formalised policy documents, nor has it entered any parliamentary bills for the regulation of AI. However, in April 2019, President Ramaphosa appointed members to the Commission for the Fourth Industrial Revolution, which is intended to assist the government in taking advantage of the opportunities that are presented by the so-called ‘digital industrial revolution’. The task of this commission, which will be chaired by the president, is to identify relevant policies, strategies, and action plans that will position South Africa as a competitive global player.

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