South Africa's Copyright Bill: A Trojan Horse for Big Tech's AI Ambitions?

In a notable development that has sent ripples through South Africa's creative sectors, concerns are mounting that the Copyright Amendment Bill currently under consideration may be more aligned with global tech giants' interests rather than local creators. Discussions during the National Council of Provinces (NCOP) public hearings in 2023 shed light on a rather unnerving reality: the Department of Trade, Industry and Competition overlooked the repercussions of burgeoning artificial intelligence (AI) technologies when drafting the bill.

It has become increasingly evident that the provisions for expanded fair use might inadvertently cater to the ambitions of Big Tech companies, sanctioning them to leverage creative content for developing their AI tools and services. There is consternation that, while the end products of AI may not directly infringe copyright, the initial "ingestion stage," where content is consumed for machine learning, could violate copyright without the due consent or equitable recompense to the original creators.

Analogous to the shout-out of Google Books decision, the bill's current state could provide tech companies with undue cover against copyright infringement claims. However, the outcomes of AI and machine learning technologies stretch beyond the parameters of existing fair use justifications. Unlike Google Books, where snippets are made searchable with attribution, AI-related aggregations involve extensive data sets and often lack attribution. This could disrupt existing moral rights, especially if the "output" deforms the original works.

The department's admission that it had failed to conduct a comprehensive economic impact assessment — particularly one that incorporated AI's influences on creative industries — has been questioned. This oversight might have significant consequences, as it appears South Africa is being primed as a haven for AI development, potentially drawing in international players looking to evade the stricter legal environments found in the United States or European Union.

The potential enactment of the bill may signal to the World Intellectual Property and World Trade Organizations that South Africa endorses a progressive, albeit potentially exploitative, legislative framework. Such a stance could reverberate across the African Continental Free Trade Area and influence other nations' laws.

This situation poses a clear threat to South Africa’s creative economy, potentially undermining the country's structured knowledge ecosystem and the livelihoods of its creative professionals. The fears of the creative community have been further echoed by legal experts, emphasizing the importance of securing a constitutional court ruling to determine whether the bill's provisions might infringe upon international copyright laws and constitutional rights.

Given these concerns, there is an urgent call for a "reset" in South Africa's approach to copyright legislation. This could be initiated by a court decision that would necessitate a reevaluation of the Copyright Amendment Bill. Revising the bill, with insight from seasoned copyright experts and legal scholars, would ensure that it not only respects national interests but also conforms to South Africa's international obligations.

In conclusion, the implications of the Copyright Amendment Bill have come to the fore, highlighting a complex interplay between local creator rights and the expansive reach of Big Tech companies. The outcome of this legislative process could significantly shape the future of creative content generation and copyright protection in South Africa.