Generative AI: Uncharted Legal Waters

Generative Artificial Intelligence (AI) – capable of producing different types of content such as imagery, text and audio – presents a very interesting legal conundrum, particularly from an intellectual property perspective. Whose intellectual property is used in this process? And is this use authorised? Moreover, what laws exists to regulate these fast-evolving technologies?

The recent British case of Getty Images v Stability AI – in which the court found that Stability AI was guilty of various copyright infringements in using its generative AI – has highlighted the need and importance of robust regulatory measures to mitigate against AI-generated media falling foul of internationally accepted intellectual property protections. The European Union (EU) is one of the first global payers to heed this call, having sought to pass the EU Artificial Intelligence Act. Although this legislation is currently still subject to considerable scrutiny and debate, it effectively proposes to introduce general guidelines for the creation, commercialisation and application of AI-driven systems; seeks to formalise the necessary requirements for trustworthy AI models; and mandates strict adherence to applicable laws and ethical standards.

Although South Africa is yet to propose its own AI regulatory framework, this lacuna in our law will no doubt be exploited as a consequence of substantially increased investment in AI-related technologies. In this context, it will be prudent to monitor the development of regulatory measures in first world jurisdictions. These may serve as useful “blueprints” which can of course be adapted in accordance with the technological idiosyncrasies which are somewhat unique to South Africa.

Notwithstanding the above, it is clear that extreme advances in generative artificial intelligence not only impacts on the world of technology, it also requires legal practitioners to now navigate a very new and uncertain area of the law. Time will only tell if the legal fraternity is up to this tall task.

We trust that you found this article informative, please email info@hjwattorneys.co.za for assistance with all of your legal matters.

By Dehal Jivan (Vacation Work Student, 2023)

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.