Artificial intelligence and copyright fair use in South Africa.
 

Author:

A Miggels
 

Summary:

South Africa’s current copyright law, written in 1978, is too outdated to handle the challenges of the digital age and Artificial Intelligence (AI). Currently, the country uses a system called “fair dealing”, which only allows a very specific, limited list of uses for protected works without the creator's permission. If a new technology, like an AI system being trained on data, does not fit exactly into one of those narrow categories, it is considered copyright infringement. This article argues that this rigid system prohibits innovation and limits access to knowledge. While critics fear that switching to a more flexible "fair use" system will cause legal confusion, the article points out that the current "certainty" provided by fair dealing is an illusion. In fact, South African courts have only tested fair dealing once in decades and had to rely on foreign law because the South African law was vague. The article argues that the solution is to adopt the "fair use" model outlined in the Copyright Amendment Bill. Instead of a fixed list, this model uses flexible factors to decide if a use is fair, such as the purpose of the use and whether it harms the creator's profits. By looking at examples from the United States, Nigeria, and Uganda, the article shows that these flexible rules can thrive in developing nations. Ultimately, the article argues that South Africa must modernise its laws to attract AI investment and support creators in a fast-changing world.


Link to Journal article