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By Leisha Chiba, (Associate), under the supervision of Reinard Krüger, (Partner), at Spoor & Fisher

Technology rapidly transforms intellectual property (IP) by challenging traditional IP frameworks and simultaneously creating fresh opportunities for both the creative and business industries. In South Africa, and globally, the increasing reliance on technology for content creation and innovation requires the improvement and modernisation of IP laws and legislation to ensure that legal frameworks remain applicable and updated.

The Evolution of IP in the Age of Technology

Artificial Intelligence and IP Generation

Artificial Intelligence (AI) has put a new spin on innovation, producing many inventions and copyright works, including music, computer code, artistic and visual, video and literary works to name a few. For example, tools like ChatGPT and DALL-E are reforming the creative industries on a global scale. However, like all things new and unknown, critical legal questions start to emerge, like: who actually owns the outputs created by AI?

In terms of South Africa’s patent legislation, only humans are recognized as inventors. This principle has been tested all over the world in a controversial series of cases involving Dr Stephen Thaler, who cited a machine learning tool named “DABUS” (Device for the Autonomous Bootstrapping of Unified Sentience) as the inventor of a food container constructed using fractal geometry, which enables rapid reheating. South Africa has been one of the only jurisdictions to grant the patent, recognising DABUS as an inventor, however this decision remains contentious globally. Other jurisdictions have rejected similar applications, highlighting the need for global legal harmony.

Digital Transformation and Copyright

To further complicate AI matters, copyright law struggles to address copyright issues surrounding AI-generated content. Currently, it is not clear whether AI can qualify as an author of a copyright work, creating uncertainty for the creative and business industries.

The growth of digital platforms has disrupted traditional copyright frameworks. South Africa’s Copyright Amendment Bill, which attempts to align the law with the fair use principle to empower digital advancements, has faced criticism for its broad fair-use provisions, which many fear may weaken the rights of human creators.

Streaming services like Spotify, Apple Music, and YouTube have changed how content is consumed and monetised worldwide. While they offer creators more exposure, they also raise the risk of copyright infringement. South Africa needs stronger enforcement measures to protect creators, especially in the global digital landscape.

Challenges Posed by Technological Advancements

Jurisdictional Conflicts

IP protection facilitates the global distribution of technology, but protection remains jurisdictional. South African IP owners may encounter challenges in enforcing their IP rights internationally, particularly where laws differ widely between jurisdictions.

Cybersecurity Risks

Cybersecurity has become a critical tool for protecting IP and policing for IP infringement as digital threats begin to escalate. Businesses and creatives are facing increased risks of IP theft and trade secret breaches. In order to combat this, safeguarding measures such as encryption, regular audits and advanced threat-detection can improve the protection, detection and enforcement of IP assets. It is critical for South African companies to prioritize cybersecurity to combat increasingly complex cyberattacks.

The Complexity of Emerging Technologies

New and emerging technology such as 3D printing, virtual reality (VR), and the Internet of Things (IoT) are rapidly growing and transforming the business and creative industries. This presents many new challenges for IP protection.

As an example, 3D printing essentially enables users to create physical objects directly copied from ‘digital blueprints’, raising concerns about the unauthorised reproduction of protected designs. In a similar sense, VR is reshaping how digital content is received and experienced but yet again complicates copyright and trade mark enforcement. One major challenge in protecting IP within the IoT lies in preventing trade mark and copyright infringement on devices. With laws rapidly changing, developers are continuously pushed to adapt, and so should the applicable law.

The Best Practices for Businesses

Audit and Update IP Portfolios and Leverage International Treaties

South African businesses should regularly audit their IP portfolios to ensure they reflect updates and advancements. For instance, registering patents related to software or securing trade marks for ‘digital’ assets can protect innovations. South African businesses should utilise global IP treaties such as the Paris Convention, Patent Cooperation Treaty (PCT), Budapest Treaty and Berne Convention, to secure cost-effective IP protection and enforcement in jurisdictions globally.

Conclusion

As the digital era strives to redefine the IP world, South Africa has reached a pivotal moment where it must modernise its legal framework, improve and enhance enforcement and promote international harmonisation. The South African legal framework should consistently address these challenges to protect innovation, empower creators and the creative industry and establish itself as a world-player in IP protection, to thrive in the global digital economy.