AI Copyright in South Africa: Inputs, Outputs and Ownership

Key takeaways

• South African copyright law does not give one answer to every use of generative AI. A business should separate at least three questions: whether it may supply or reproduce material as an input, whether an output qualifies for copyright or copies a protected work, and who owns or may use any resulting rights.
• The Copyright Act 98 of 1978 recognises computer-generated literary, dramatic, musical and artistic works and computer programs. It identifies the author as the person who undertook the arrangements necessary for the work's creation. That wording does not automatically make the person who typed a prompt the author or owner of every AI output. The output must still be a qualifying work, original, recorded in material form where required, and connected to an author and owner under the Act. The platform terms, employment relationship and written contracts also matter.
• As at 20 July 2026, the Copyright Amendment Bill had not been identified as an enacted amendment in the official sources reviewed for this article. The Constitutional Court's June 2026 judgment upheld the proposed fair-use clause within the scope of the President's referral, but the Court described the Bill as not yet enacted and held part of its proposed educational exceptions unconstitutional. Do not apply the Bill's proposed general fair-use test as if it were already current law.

1. Treat the AI workflow as three rights checks

Inputs

Identify every work supplied to the system: articles, photographs, illustrations, music, source code, presentations, customer material and internal documents. For each input, ask who owns it, what licence applies, what the system does with it and where any reproduction or adaptation occurs.

Outputs

Ask whether the output falls within a category protected by the Act, whether it satisfies originality and material-form requirements, and whether a human created it with computer assistance or it was generated without a human author. Then assess whether the output reproduces or adapts a protected part of another work.

Ownership and permission

Authorship, first ownership, assignment and permission are different concepts. A business may have permission under platform terms without owning copyright. It may own copyright under an employment rule but still be restricted by a third-party licence. A contract may allocate rights between parties, but it cannot safely be assumed to cure an infringement of someone else's work.

2. Current law is not the same as proposed reform

The current Copyright Act contains specific exclusive rights, exceptions and a fair-dealing provision. Section 12(1) applies fair dealing to literary and musical works for listed purposes including research or private study, personal or private use, criticism or review, and reporting current events, subject to its wording and source-attribution conditions. Other work categories have their own provisions.

That is not a general permission to copy any work for any beneficial or innovative purpose. The work category, protected act, purpose, amount, source, licence and location of the relevant conduct must be examined. The current Act cited here does not create an AI-training exception by name.

The Copyright Amendment Bill proposes a broader fair-use framework. In Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers' Protection Amendment Bill, the Constitutional Court held in June 2026 that proposed section 12A was constitutional within the scope of the President's referral. It also upheld several other proposed exceptions, held proposed section 12D(1)–(5) unconstitutional, and found that the referral concerning proposed sections 6A, 7A and 8A as a whole was incompetent.

That judgment determines the constitutional questions placed before the Court; it does not make every provision of the Bill operational copyright law. The Court expressly noted that the Bill had not yet been enacted. The current Parliament page still identifies it as referred to the Constitutional Court. Confirm assent, the final text and commencement before relying on any proposed amendment.

3. Can an AI output qualify for copyright?

Start with the statutory sequence rather than the label “AI-generated”.

Identify the work

The Act lists categories including literary, musical and artistic works, cinematograph films, sound recordings, broadcasts, published editions and computer programs. A campaign may contain more than one work: text, an illustration, a recording and the edited layout may each require separate analysis.

The claimant must identify the alleged work precisely. In King v South African Weather Services, the Supreme Court of Appeal stressed that copyright is statutory and that the work, originality, material form, qualifying connection, authorship and ownership must be established.

Test originality and material form

An eligible work must be original, and the Act requires specified works to have been written down, recorded, represented in digital data or otherwise reduced to material form. Originality is not the same as novelty. In Haupt t/a Softcopy v Brewers Marketing Intelligence, the Supreme Court of Appeal explained that the work should not be copied and should involve a substantial, rather than trivial, degree of skill, judgment or labour.

The amount and nature of human work therefore matter. Record who selected the source material, designed the brief, made expressive choices, rejected versions, combined elements and edited the final work. A list of prompts without the resulting versions and human changes may not show how the final expression was produced.

Identify the author

For a computer-generated literary, dramatic, musical or artistic work or computer program, the statutory definition points to the person who undertook the arrangements necessary for creation. In Haupt, the Supreme Court of Appeal said a work is computer-generated when it is created by a computer in circumstances where there is no human author; if there is a human author, the computer assists that person.

That case concerned software and database-related works, not a modern generative-AI service. It does not decide whether the user, developer, employer, customer, provider or another person undertakes the necessary arrangements in every AI workflow. The result is fact-sensitive. Control over the expressive result, the division of work, the model's operation, platform terms and contractual allocation all require review. Avoid a policy that treats the prompt author as the copyright owner by default.

4. Who owns the output?

Authorship is the starting point, not always the endpoint. Section 21 generally places first ownership with the author, but it contains exceptions and permits contrary agreement in specified circumstances.

For work made in the course of employment under a contract of service or apprenticeship, the employer may be the first owner, subject to the section's distinctions and any agreement excluding the rule. A contractor or agency is not automatically an employee. The commissioned-work exception applies to specified categories and conditions, including certain commissioned photographs, portraits, gravures, films and sound recordings. Paying an invoice for other creative work does not by itself prove an assignment of copyright.

Section 22 requires an assignment of copyright or an exclusive licence to be in writing and signed by or on behalf of the relevant assignor or licensor. A non-exclusive licence can operate differently. Use a written agreement that identifies:

• the human and machine contributions;
• the inputs and their permitted uses;
• the deliverables and versions covered;
• any pre-existing material retained by a party;
• ownership or licence of the final output;
• territory, duration, media and sublicensing rights;
• responsibility for third-party permissions; and
• the process if an infringement concern or platform takedown arises.

Read the AI provider's terms that applied when the output was created. Record the account type and date because terms may differ by product and change over time. A provider's promise to assign or allow use of an output is not proof that the output attracts copyright or that no third-party rights are involved.

The Act also preserves specified moral rights for an author despite transfer of copyright, including the right to claim authorship and object to prejudicial distortion, mutilation or modification, subject to statutory qualifications. Do not remove creator-credit or modification protections from a review merely because economic rights were assigned.

The copyright ownership checklist can organise the people, contracts and evidence needed for a matter-specific ownership analysis.

5. Can the output infringe someone else's work?

An output is not cleared merely because it was generated rather than copied and pasted. The review should identify:

1. the earlier work said to be protected;
2. the work category and subsistence of copyright;
3. the author and current owner or exclusive licensee;
4. the protected act allegedly carried out in South Africa;
5. whether a reproduction or adaptation of the whole or a substantial part occurred;
6. any consent, licence or statutory exception; and
7. evidence of access, generation history and independent human work.

Similarity alone is not the complete test. In Media 24 Books v Oxford University Press Southern Africa, the Supreme Court of Appeal found that similarities between example sentences in competing dictionaries raised suspicion but did not discharge the onus of proving copying in light of the evidence and the nature of the works. Each dispute turns on its own protected expression, access and proof.

A request to imitate a named creator's style is a warning sign, but the word “style” does not resolve the legal analysis. Review the output against identifiable protected works and substantial elements, and consider separate issues such as trade marks, passing off, personality interests, performers' rights or contract restrictions where relevant.

Before public release, run a human similarity review appropriate to the medium. Reverse-image or audio searches and source-code scans can assist, but no automated match score proves non-infringement. Preserve the search inputs, output versions, review decision and remediation steps.

6. What about training, retrieval and uploaded reference material?

“Training data” can describe different technical events. A foundation-model developer may ingest a corpus, a customer may upload reference files, or a retrieval system may index documents and send selected extracts to a model. The copyright analysis depends on what copies or adaptations are made, by whom, where and for what purpose.

Do not assume that public availability means permission. A page, photograph or code repository can be publicly accessible while its copyright remains controlled. Also do not treat a provider's general terms as a licence from every third-party owner whose work may be available online.

For an internal AI system, create an input register that records:

If the permission depends on fair dealing or another exception, document the exact statutory provision and facts. “Research”, “internal”, “transformative” or “non-commercial” is not, by itself, a complete current-law conclusion.

7. A release gate for business use

Before generation

• Approve the tool, account type and applicable provider terms.
• Exclude inputs without a documented permission basis.
• Identify confidential, personal, licensed and customer-owned material separately.
• Prohibit prompts intended to reproduce a named work, character, recording, logo or substantial extract without approval.
• Define whether the output is for exploration, internal use or public commercial release.

During creation

• Save the prompt, inputs, model or service version, date and output versions.
• Record human selection, editing, combination and rejection decisions.
• Keep third-party material separate from original contributions.
• Escalate a close resemblance or unexpected brand, signature, watermark, lyric, code fragment or character.

Before release

• Confirm the authorship and ownership position rather than relying on the account holder's name.
• Check signed assignments, licences and commissioned-work terms.
• Review the final output for substantial similarities and embedded third-party material.
• Confirm attribution, moral-rights and open-licence obligations.
• Record the reviewer, approved version, allowed channels and residual risk.

The copyright glossary explains the core protection, while the intellectual property glossary distinguishes copyright from the other rights that may also affect an AI release.

8. When specialist review is needed

Obtain a focused copyright review before release where:

• training or retrieval uses a large third-party corpus without an express licence;
• the intended defence depends on fair dealing or an uncommenced Bill provision;
• the output closely resembles a known work, character, photograph, recording or source-code project;
• multiple employees, contractors, agencies and providers contributed;
• the provider terms do not match the customer contract or planned sublicensing;
• a creator disputes credit, modification or ownership;
• the work will be licensed, sold, financed or used as a core brand asset;
• an infringement notice, takedown or preservation request has been received; or
• relevant conduct, servers or parties span more than one country.

Preserve evidence before regenerating, deleting or overwriting disputed material. A new output may reduce future risk but can destroy the record needed to understand what happened.

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