SOUTH AFRICA Law and Practice Contributed by: Daniel Pekar, André du Plessis, Sarah Suleman and Shaawn Phooko, KISCH IP
12. Additional Considerations 12.1 Emerging Issues
There are currently no landmark trade mark or copy - right cases concerning AI. 12.2 Trade Mark and Copyright Use on the Internet In South Africa, where third parties (eg, service pro - viders) make unauthorised use of a trade mark, they can be approached with a letter of demand to have the offending use removed. Service providers usually do require proof of registration before compliance. However, where service providers are not persuaded by a letter of demand (coupled with proof of registra - tion), the trade mark/copyright owner can approach the court for relief and then use the court order to force them into compliance. Where third parties make unauthorised use of the marks on social media pages such as Facebook, Ins - tagram or X (formerly known as Twitter), the proprie - tors of the marks have the option of filing take-down notices on these platforms. These will only be suc - cessful if the proprietors of the marks can prove – usually by way of registration – that they are the bona fide mark owners.
There are currently no emerging issues concerning trade marks and copyright in South Africa. When it comes to emerging issues, South African courts gen - erally refer to decisions of those foreign jurisdictions that share the same common law approach. Even then, these can be cited for persuasive value only and it is not set that the courts will follow them (ie, no stare decisis). South Africa does not have any specific laws (in respect of either trade marks or copyright) that address works created by AI and so the law is, to date, unclear/uncertain on who would be the author of works generated by AI. There are more questions than there are answers on this topic and arguments can be made for either side of the coin. For instance, the Copyright Act 98 of 1978 defines “author” as including creators of “computer-generated works”. Given that AI-generated works have no human intervention (ie, creators), one can argue that they do not fall within the scope of “author” as intended by the Copyright Act 98 of 1978. However, the Copyright Act 98 of 1978 also provides that the “author” – for the purposes of “computer-generated work” – includes the person responsible for making arrangements for the creation of the work. The meaning behind “making arrange - ments for the creation of the work” is open for debate and, on this point, one can argue that it covers AI- generated works.
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