/ 6 April 2024

AI-generated art: Protected in SA law?

Graphic Mrli Page 0001

In the rapidly evolving landscape of generative artificial intelligence (AI), societies worldwide, including South Africa, are witnessing a remarkable transformation in the realm of creative expression. This technological revolution, driven by AI, is reshaping the way we conceive, create and interact with art and media. 

AI’s capability to generate stunning visuals, write compelling narratives and compose intricate musical pieces is not only democratising artistry but also ushering in a new era of creative possibilities. However, these advancements pose significant challenges to existing legal frameworks, particularly in the realm of intellectual property rights. 

The ease and efficiency with which AI can produce original content raises complex questions about ownership and copyright, pressing issues for legal systems worldwide, including South Africa’s.

A landmark decision by China’s Beijing Internet Court, likely to influence global conversations about the intersection of technology and intellectual property, has delivered a verdict on a unique case involving copyright infringement of AI-generated images. This ruling, from the world’s most populous nation, has profound implications for the burgeoning AI art scene and international copyright law.

The case involved plaintiff Mr Li, who created an image using the AI software Stable Diffusion and defendant Ms Liu, who used this image without permission. 

Li’s creative process involved a detailed input of prompts to generate a specific image, which he then posted online. Liu’s unauthorised use of this image, removing the original watermark, led to the lawsuit.

The court’s decision focused on the interpretation of the term “works” in the People’s Republic of China’s copy­right law, acknowledging the intellectual effort involved in creating an AI-generated image. 

The court deemed the plaintiff’s process — an amalgam of conceiving the image; choosing and arranging prompt words; setting parameters; and selecting the final output — an “intellectual achievement”. 

This ruling is pivotal, recognising the creative effort involved in directing AI to generate art, aligning it with more traditional forms of artistic expression.

This ruling is notable for several reasons. First, it acknowledges the evolving nature of artistic creation in the digital age, asserting that technological advancement should not diminish copyright laws intended to encourage creativity. It highlights that creators using AI tools, much like traditional artists, invest considerable intellectual effort in the creative process.

Secondly, this decision sets a precedent for other jurisdictions grappling with similar issues. As AI technology becomes more accessible and sophisticated, legal systems worldwide will inevitably encounter similar cases. 

The Beijing Internet Court’s ruling offers a template for how such cases might be approached, balancing the rights of creators with the realities of new technologies.

Last, the ruling underscores the importance of copyright in the digital era, affirming that AI-generated works can be copyrighted if they involve significant intellectual input from the creator. This reinforces the notion that creativity, regardless of the medium, deserves legal protection.

In South Africa, the copyright amendment bill of 2017 does not explicitly address the generation of artworks by means of AI but, in terms of our extant Copyright Act of 1978, the term “author” is defined in a way that includes creators of “computer-generated works”. 

It recognises the “author” as the individual responsible for the necessary arrangements facilitating the computer-generated work, accommodating AI-generated works by attributing authorship based on the human author’s contribution of orchestrating the creation process. 

For a work to be protected by copyright, it must showcase “originality”, which fundamentally means it reflects the author’s individual effort, skill and creative input — this is often referred to as the “sweat of the brow” test. 

Specifically, when authors use generative AI to create something, they must demonstrate that the AI’s output is a manifestation of their ideas and creative direction. Originality does not require the work to be novel or unprecedented. Instead, it hinges on the author’s unique contribution of skill, effort, and judgment. 

Even if the work incorporates or builds upon widely known information or ideas — as generative AI does — it can still qualify for copyright protection, provided it embodies the author’s distinct effort and creativity.

The lack of clear provisions for AI-generated works in the copyright amendment bill sparks concerns over the protection of such works and over the bill’s adaptability to an era where AI significantly affects content creation. 

There is an urgent need for a broader discussion on evolving copyright laws to embrace AI’s creative capabilities, which are reshaping traditional authorship and creativity. Without clear guidance, creators and technologists might hesitate to fully leverage AI in creative processes, potentially stifling South Africa’s digital creative economy’s growth.

In addition, the bill’s alignment with international standards is vital for ensuring that South African creators can compete globally and that their works are adequately protected under a robust copyright framework.

In conclusion, as AI continues to blur the lines of creative authorship, the Beijing Internet Court’s ruling shines a light on the path forward for copyright law. 

It offers a compelling precedent that underscores the critical role of human intellect in the creation of AI-generated works, a principle that aligns well with South Africa’s copyright framework. 

As we navigate this new frontier, it is essential for legal systems to adapt, ensuring the protections afforded by copyright law extend to the innovative expressions borne of AI. 

Such adaptations will not only safeguard the rights of creators but also foster a culture of innovation and creativity in the digital age, contributing to a rich and vibrant cultural landscape. 

Embracing this evolution, South Africa could lead by example, promoting a balanced and forward-looking approach to copyright in the era of AI.

Donrich Thaldar is a professor of law and Marietjie Botes is an honorary research fellow at the University of KwaZulu-Natal.