AI, Copyright, and Cultural Sovereignty: What South Africa’s Parliament can learn from the U.S. Copyright Office

written by idkblanco | 9 min read

The U.S. Copyright Office’s recent report on AI‐generated works is more than a domestic policy document – it is a blueprint for nations confronting the rapid evolution of artificial intelligence and its implications for copyright law. As South Africa continues to debate its long-delayed Copyright Amendment Bill, policymakers stand at a crucial crossroad: how to modernise copyright law for the digital era while protecting the country’s rich creative industries. The U.S. report offers valuable lessons, highlighting the need for a legal framework that balances innovation and human authorship without unconsciously undermining local artists.

The Fundamental Principle: Copyright Belongs to Humans, Not Machines

One of the strongest messages from the U.S. report is that copyright is inherently a human right. AI‐generated works, without sufficient human involvement, are not copyrightable. This is an essential safeguard against a flood of synthetic content that could devalue the labour and creativity of actual artists.

South Africa, a country whose creative industries – from the globally celebrated log drum of Amapiano to its rich literary and cinematic traditions – form a vital part of its identity, must take heed. If AI‐generated creative outputs can be copyrighted without human input, it would disrupt the existing economic structures that reward human creativity. Imagine a scenario where AI‐generated “Kwaito songs” created in Silicon Valley are granted the same legal protection as those crafted by local artists rooted in the culture. The economic and cultural implications would be profound.

In the context of the current Copyright Amendment Bill – which primarily revises traditional copyright exceptions and royalty-sharing mechanisms – this issue is even more pressing. The Bill does not address AI-generated works at all, leaving a regulatory gap that could compound existing challenges such as royalty dilution, a concern already highlighted by SAMIC in their submission.

The Copyright Amendment Bill must make it explicit that only works with verifiable human authorship can be copyrighted. This prevents a potential flood of AI‐generated content from saturating the market, driving down royalties for genuine creators, and eroding the authenticity of South Africa’s creative legacy.

Defining Human Input: Where Does Copyright Protection Begin?

The U.S. report acknowledges the nuanced reality of AI in creative work – numerous artists use AI tools, but not all AI‐generated outputs should be disqualified from copyright. Instead, the U.S. Copyright Office proposes a case‐by‐case approach, determining whether human authorship is substantial enough to warrant protection.

For South Africa, a clear legal test is needed. Legislators must define what constitutes “sufficient human input.” For instance:

• If a musician edits and arranges an AI‐generated beat, does that merit copyright protection?
• If an artist merely prompts an AI to generate a song but does not modify it, should that work be considered in the public domain?
• If AI co‐writes lyrics, but the musician refines and performs them, who owns the final product?

A viable solution is the “creative control” standard, where copyright is granted only if human authors patently shape the AI‐assisted work. This ensures that AI remains a tool rather than a replacement for artistic agency.

As an amendment, policymakers should consider including language such as: “A work shall be eligible for copyright protection only if the human author has exercised substantial creative control over the final output, thereby ensuring that AI remains an assisting tool rather than the primary creator.”

Transparency: Mandating Disclosure of AI Use in Creative Works

Another key takeaway from the U.S. approach is the importance of transparency. The U.S. Copyright Office has introduced guidelines requiring creators to disclose AI involvement when registering a work. South Africa should adopt a similar mechanism.

Mandatory disclosure of AI-assisted works would:

• Help determine fair compensation in licensing and royalty agreements.
• Prevent deceptive practices where AI-generated works are passed off as purely human-created.
• Assist regulators in assessing the long-term impact of AI on creative industries.

Also, the current provisions on exceptions – such as the fair use exception in Section 12A of the Copyright Amendment Bill – could be exploited if AI-generated works are not clearly identified. Requiring disclosure would allow CMOs, such as SAMRO, to track and report AI-assisted works separately, ensuring that human creators are not financially disadvantaged by an influx of machine-generated content.

Resisting Corporate Pressure to Introduce “Sui Generis” Rights for AI

The U.S. report rejects the idea of creating “sui generis” (unique) protections for AI‐generated works, a concept heavily lobbied for by major tech firms. This is critical because granting copyright-style protections to AI outputs would incentivise corporations to mass-produce content – posing a threat to independent creators.

South Africa must be vigilant against similar lobbying efforts. If AI-generated works gain legal recognition, multinational companies could monopolise entire genres of creative expression. The danger is particularly grave in the African context, where digital colonialism – the exploitation of local cultural assets by foreign tech firms – is already a concern.

Policymakers should consider amendments that categorically exclude AI-generated works from copyright eligibility unless significant human creative input can be demonstrated.

Protecting the Economic Viability of South Africa’s Creative Industries

The U.S. report raises concerns about AI’s impact on creative economies, particularly the dilution of royalties. AI-generated content can flood streaming platforms, reducing payouts to human artists. This is a pressing issue for South Africa’s music industry, which, despite its global reach, still struggles with equitable revenue distribution.

The Amendment Bill must address AI’s economic implications by:

• Clarifying AI’s role in copyright law—ensuring that royalties are distributed based on human contributions rather than machine-generated content.
• Updating collection and distribution mechanisms—SAMRO and other collective management organisations must adapt their models to track AI-assisted works and ensure fair payments.
• Strengthening anti-exploitation measures—preventing AI firms from training models on South African cultural content without compensation.

Such measures would extend SAMIC’s concerns regarding royalty dilution under the current exceptions (Sections 12A–12D) to cover AI-generated works, thereby protecting the revenue streams of local creatives.

Education & Infrastructure: Preparing Artists for an AI-Driven Future

The U.S. Copyright Office is working to update educational resources to help artists navigate AI’s legal implications. South Africa must do the same. A plethora of creatives lack access to legal guidance on AI’s role in copyright law. The government, in collaboration with artist unions and industry stakeholders, should:

• Launch workshops and online courses explaining AI’s copyright implications.
• Provide legal assistance for artists seeking to register AI-assisted works. OR: Alternatively, develop an accessible digital portal where artists can specify human versus AI contributions, mirroring the U.S.’s streamlined process.
• Develop digital tools for transparent royalty tracking, ensuring AI-generated works do not dilute earnings from human-created content.

Such initiatives should also cover the emerging challenges of integrating AI disclosures into the current legal framework – empowering artists with the knowledge to navigate both traditional copyright issues and the new frontiers introduced by AI.

Aligning with Global Standards While Protecting Local Interests

The U.S. report acknowledges that international copyright laws are still evolving. The EU and China have taken different approaches, but the U.S. framework strikes a balance between innovation and creator rights. South Africa should study these models but ensure its laws reflect local realities.

For example, while the EU emphasises strong AI transparency rules, China leans toward state control over AI-generated content. South Africa should look into crafting a hybrid model – incorporating transparency, human authorship, and economic safeguards while preserving cultural sovereignty. It is worth noting, several African countries (e.g. Rwanda, Benin, and Egypt) are beginning to explore AI policy frameworks. By incorporating these insights, South Africa can position itself as a continental leader in protecting cultural assets from digital colonialism and ensuring fair compensation for local creators.

Additionally, alignment with global standards can prevent trade disputes. The Copyright Amendment Bill must ensure compliance with international treaties like the Berne Convention while resisting external pressures that might compromise local creative autonomy.

South Africa’s Moment to Lead

The debate over AI and copyright is not just a legal issue – it is a defining moment for South Africa’s creative future. The Copyright Amendment Bill must embrace the lessons of the U.S. report: centring human authorship, demanding transparency, rejecting corporate dominance, and protecting the economic foundations of its artistic community.

As stakeholders like SAMIC voice concerns over traditional copyright exceptions, it is imperative to extend those safeguards to address AI. Incorporating explicit language regarding AI – such as mandatory disclosure and a “creative control” standard – would fortify the legal protection of human creators and ensure that the influx of AI content does not further erode revenue streams.

By acting decisively, South Africa can set a precedent for how developing nations navigate AI’s impact on creativity – ensuring that innovation enhances, rather than erodes, the soul of its cultural industries.

The future of creativity is not about man versus machine. It is about ensuring machines serve man. South Africa’s copyright laws must reflect that truth.

Read the full U.S. Copyright and Artificial Intelligence report