Intellectual property law is a delicate balance between access and protection. On one side, knowledge and inventions should be available for others to learn from and build upon. On the other, creators and inventors need incentives to invest time and resources into their work.
“You will hear the word ‘balance’ a lot in intellectual property,” says advocate Thato Moloto, a lecturer and specialist legal practitioner at North-West University (NWU). “On the other side, we are saying we need to encourage people to create more, so we need stronger protection.”
The tension between access and protection
The difficulty for the law is that both arguments can be right. Protect too little and there may be little incentive to create. Protect too much and yesterday’s innovation can become the barrier to tomorrow’s. This tension is particularly significant in South Africa, where questions of innovation cannot easily be separated from questions of access.
“For the moment, we are approaching it from the perspective of more access, especially with educational material,” Moloto says. But that approach carries its own question. “If you are giving so much access, it doesn’t encourage me to create or to invent or to trade.”
In creative fields, the line between inspiration and imitation is often blurred. Artists, writers, and musicians build upon the work of their predecessors. The law recognizes that originality does not require complete novelty.
“Originality doesn’t mean it has never been seen before,” Moloto explains. A work can be influenced by others, but it must demonstrate sufficient original skill and labour to stand on its own. It must be more than a “slovenly copy.”
The role of artificial intelligence
Artificial intelligence introduces new complexities. Can something that is not human be an author or an inventor? Moloto cautions that the question itself contains an assumption. “For you to ask that question, you have to accept some sort of anthropomorphic characterisation of AI. You have to say it exists separately and is akin to a person.”
South Africa occupies a particularly interesting position in this international debate because of the patent application associated with American inventor Dr Stephen Thaler and his AI system, DABUS. South Africa became notable internationally when a patent naming the AI system as inventor was granted here. However, this result reflects the country’s formal examination-based patent system, which focuses on compliance with filing requirements rather than the substantive merits of the invention.
South Africa’s approach to intellectual property is shaped by its unique economic and developmental context. The country must balance encouraging innovation with ensuring access to knowledge and education. This tension is reflected in the breadth of IP research at NWU, ranging from socio-economic rights to traditional cultural knowledge.
The legal boundaries of inspiration and imitation
The legal question cannot therefore simply be: Have we encountered something like this before? It becomes: What has this creator added? While creators often draw from existing ideas, themes, or techniques, the law requires that the new work demonstrates sufficient independent skill and labour. In music, there is only a limited number of chord progressions and pretty much all of them have been used, he says. The key legal question is not whether similarity exists but whether the new work adds something original beyond mere reproduction.
The evolving framework of intellectual property
The environment in which intellectual property (IP) principles operate has become increasingly complex. With the rise of digital technologies, creative works can now be shared and transformed across borders instantly. Yet the underlying legal tension remains: what deserves protection, and what should remain available for others to use?
Artificial intelligence and authorship
As AI becomes more integrated into creative processes, the legal boundaries between human and machine-generated works will require careful definition. An AI system may be capable of generating something, but the ability to generate an output is not necessarily the same legal concept as authorship or inventorship.
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