Artificial Intelligence (AI) which used to be science fiction, is now becoming a reality in many industries. Technology companies are innovating so rapidly that even those companies that are not necessarily ‘tech companies’ are becoming more and more high tech in their delivery of goods and services. AI is a reality that many will experience in our life times but is our law ready to address this?

The Oxford dictionary defines AI as: “the theory and development of computer systems and software able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.”

We already make use of some AI in our daily lives with Siri, Alexa and navigation systems being examples.

While there are many positives that AI brings. It has been said that in the South African context the increased use of AI will lead to worsening unemployment, increasing concentration of wealth and the inclusion of bias into algorithms.1

The big issue from a legal perspective will be intellectual property rights. The question of who owns the copyright to machine-generated works, and who owns the copy right to the machine itself, is with what law makers will struggle with. Currently, the Copyright Act2 defines an author in relation to a computer program, as the person who exercised control over the making of the computer program. This is an outdated definition which does not adequately address the issue. To remedy this, the Copyright Amendment Bill was drafted.

In terms of ownership of the AI software itself, as long as the AI software meets the subsistence requirements in terms of the Copyright Act and its interpretations given in case law, copyright will attach to AI software. In South Africa, there is no need to register your copyright in AI software, as copyright subsists from the time it is created and exists in material form.

Generally, two of the key issues in relation to Copyright Law are authorship and ownership. For a copyright to attach to the work, one needs to determine:

• whether work is original – it must not be copies for another source and sufficient labour, skill and judgment must have been inputted in the creation of the work;3
• whether the work exists in material form – it must be recorded on some medium;4
• where the author is a “qualified person” – the author must be a South African citizen or have their domicile here. The requirement is met if the author is a legal entity registered in South Africa or is published in the requisite manner.5

It is undeniable that our Copyright Act is in desperate need to deal with AI technologies especially when it comes to works created by the AI and works created with the assistance of an AI. While we wait for this update, agreements should be drafted to address legal gaps, limit liability and address risk.

The question of culpability will be a big one. AI machines will have the ability to act independently and in the case of malfunction – who will be held liable for their actions should their actions lead to some form of injury. This is an issue that has come up with regards to self-driving cars – who is responsible in the case of an accident? Recently in the United States, a man died in a car accident while the Autopilot function was on in his vehicle. It was found that the self-driving system was not at fault according to the National Highway Traffic Safety Administration which found that there were no “defects in the design or performance” of the system.

The driver was then found to be responsible for the accident because Autopilot was intended to aid, not replace, human drivers. Future issues that law makers will have to wrestle with include at what stage, if any, should AI machines be considered legal persons. As it stands, AI machines can be described as objects with economic value. A legal person is any natural person or legal entity such as a company that bears rights, duties and capacities. There have been many debates regarding this issue especially with AI becoming more intelligent and being taught how to process feelings. This is a philosophical and legal question that comes down to what makes one human.

While AI present many opportunities, it is going to take some time for the law to catch up with the changing technologies. For now, we will all have to wait and see how law makers will respond to the increased use of AI technologies.

For any assistance with technology law related matters, please contact us at SchoemanLaw Inc.
2 Act No 98 of 1978 as Amended.
Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and Others 2006 (4) SA 458 (SCA) at [35] to [37].
4 Section 2(2) of the Copyright Act Act No. 98 of 1978, as Amended.
5 Section 26(3) of the Copyright Act Act No. 98 of 1978, as Amended.

© Sixolile Timothy – Schoemanlaw Inc. 2018