Deciphering AI Ownership in South Africa: A Closer Look

Introduction: 

In today's world, artificial intelligence (AI) is everywhere, even in your smartphone's recognition features. AI's capabilities extend to creating art, music, and written content. These generative AI services raise a pressing question: who owns what the AI produces? Is it the one who instructs the AI, or the original creator of the AI? 

Background: 

Various AI companies differ in their stance on ownership. Some, like Midjourney, claim ownership of user-generated content, though subscribers may gain ownership. Others, like ChatGPT, lean toward users owning the AI's outputs. Stable Diffusion grants users a license for the AI model but doesn't claim rights over the generated content. Amidst this uncertainty, users must delve into terms and conditions for clarity.  

International law trends vary, often revolving around US copyright laws. An infamous US case, the "monkey selfie" case, suggests non-human authorship might not be copyrightable in the US. However, other countries adopt nuanced views. In South Africa, the Copyright Amendment Act 125 of 1992 is significant. It defines authorship for computer-generated works, stating the person responsible for arranging the work's creation process is considered the author. 

South African courts have further elucidated this concept. They distinguish between "computer-assisted" and "computer-generated" works, where the former involves human-aided creation, and the latter is largely autonomous. Recent cases underscore minimal human involvement in "computer-generated" works. 

See Payen components SA Ltd v Bovic Gaskets CC, and Haupt v Brewers Marketing Intelligence (Pty) Ltd 

Conclusion: 

For South African users of generative AI, the more detailed their input, the likelier they are to be deemed the authors of resulting copyrightable work. Techniques like prompt engineering can aid this. Understanding the legal context empowers creators to navigate AI ownership intricacies.

Inherent Requirement of the Job - Unfair Discrimination

  

Introduction:

The case of Damons v City of Cape Town revolves around the contentious issue of unfair discrimination in the workplace, focusing on the concept of inherent requirements of the job as a defence, and the extent of reasonable accommodation for employees unable to meet these requirements. The central question posed was whether the employer had unfairly discriminated against the employee based on disability and whether the principle of reasonable accommodation should apply in such cases.

Facts:

The respondent municipality's Fire and Rescue Service employed the plaintiff as a firefighter. However, an accident during training rendered the plaintiff permanently unfit for regular firefighting duties. Despite his limitations, he was transferred to an administrative role while retaining the firefighter designation and associated remuneration. The municipality had a promotion policy dictating that individuals seeking advancement to the position of senior firefighter needed to meet specific physical fitness criteria. Despite failing to meet these requirements, the plaintiff applied for the senior firefighter position, which was subsequently denied on the grounds of his inadequate physical fitness.

Court Findings:

The case navigated the intricacies of the Employment Equity Amendment Act (EEA), which prohibits unfair discrimination based on arbitrary factors and outlines the defence that discrimination is not unfair if tied to an inherent job requirement. The plaintiff argued that he had suffered unfair discrimination due to his disability, contending that the municipality should have accommodated him by waiving the physical fitness criterion.

The initial Labor Court ruled in favour of the plaintiff, but on appeal, the Labour Appeal Court (LAC) held that physical fitness was an inherent requirement as defined in the EEA. The LAC's decision was then challenged in the Constitutional Court.

The Constitutional Court emphasized that the inherent requirement defence provided by Section 6(2)(b) of the EEA was a 'complete defence.' However, it delved into whether an obligation existed for the employer to reasonably accommodate the employee. The Court clarified that reasonable accommodation aimed to level the playing field between disabled and non-disabled employees regarding job performance. This obligation only applied if such accommodation would enable the employee to fulfil the inherent job requirements. Beyond this, accommodation ceased to be reasonable, as it would necessitate employing someone unable to meet the essential job criteria.

Conclusion:

The Constitutional Court determined that the municipality had not unfairly discriminated against the plaintiff. While the EEA's inherent requirement defence shielded the employer, the Court underlined that reasonable accommodation should only extend to what enables an employee to meet the essential job requirements. In cases where accommodating a disabled employee goes beyond this scope, it is deemed unreasonable. This decision has significant implications for understanding the intersection of inherent job requirements, reasonable accommodation, and unfair discrimination in the workplace.