AI-Generated Software & Copyright in South Africa

1. The short answer

Think of AI as a very capable assistant. If a person is genuinely directing that assistant — making the design decisions, editing and rejecting its output, testing it and deciding what ships — then the resulting software is usually still protected, and the human (or their employer or client, depending on the deal) can own it. This is AI-assisted code.

But if a person just types a one-line instruction and ships whatever the model produces, with little real input, that is closer to fully AI-generated code — and South African copyright becomes much harder to rely on, because the law still looks for a human author who controlled the making of the work.

2. Is software even protected by copyright here?

Yes. Since 1992, a “computer program” is its own special category of work that can be protected by copyright in South Africa. You don’t register it — protection is automatic once two things are true: the work is original (it comes from a human author and isn’t just copied), and it has been written down or stored in some form (saving code to a file is enough).

“Original” in copyright doesn’t mean clever or novel. It means the work must come from the author’s own effort and not be copied. That’s the part AI puts under pressure: if almost everything came from the model, it gets harder to say the protected expression really came from a person.

3. Who counts as the “author”?

Here is the part that surprises people. For software, the “author” is not defined as the person who typed the code. It is the person who controlled the making of the program. A founder, product owner or technical lead who genuinely directs the build can be the author, even if someone else (or something else) does the actual coding.

There is a second, less-known rule that matters a lot for AI. The same Act has a special rule for works that are “computer-generated” — and, importantly, that rule expressly includes computer programs. For a computer-generated work, the author is the person who made the “arrangements necessary” for it to be created.

4. Trap 1: paying for software is not the same as owning it

This is the most expensive misunderstanding in South African software. For some kinds of work — a commissioned photograph, portrait, gravure, film or sound recording — the person who pays automatically owns the copyright. Software is deliberately not on that list.

So if you hire an outside developer, agency or “AI dev shop” to build your product, paying the invoice does not make you the copyright owner. To actually own it, you need a written assignment, signed by the developer. The Act is strict about this: an assignment (or an exclusive licence) is not effective unless it is in writing and signed.

If an employee writes the software as part of their job, the position flips in your favour: the employer owns it by default. The key is that they are an actual employee under a contract of service — not an independent contractor.

5. Trap 2: fully AI-made code may not be protected at all

If the human role shrinks to a high-level request — “build me an invoicing module with VAT” — and the model produces the code substantially on its own, a South African court could find that the person supplied only requirements and a quick review. On the reasoning in Bergh (below), that may not be enough “control over the making” to make anyone the author. If no one is the author, there may be no copyright to own.

That doesn’t mean the software is worthless — it means copyright is the wrong thing to lean on. You protect it with contracts, confidentiality, access control and good records instead (see section 8).

6. What the leading South African cases say

Two Supreme Court of Appeal decisions draw the line, and they map almost perfectly onto AI workflows.

Haupt — hands-on control wins

In Haupt, the person claiming ownership wasn’t the programmer — but he directed the work so closely that the court treated him as the author. He gave detailed instructions, stayed in constant contact, and checked and approved the work as it progressed.

Bergh — requirements and a review are not enough

In Bergh, an organisation argued it owned a program (BeefPro) it had commissioned. It lost. The developer had worked independently, and giving requirements plus checking the result was not “control over the making”. This is exactly the risk with one-shot AI prompting.

A third case, King v SA Weather Service, confirms the employment rule: programs an employee writes in the course of their job belong to the employer (on the facts of King, a state body, so they vested in the State). Arguments like “I wrote the prompts at home” won’t usually help if the work was made for the job.

7. How other countries treat AI-made work

South African courts can look to other countries for guidance. The pattern is clear: almost everywhere, copyright needs a human behind the work.

• UKHas a specific rule for “computer-generated” works (the author is whoever made the arrangements for creation) — the closest match to South Africa’s wording. But even there, the courts still look for a real human contribution.
• EUA computer program is protected only if it is the author’s “own intellectual creation”, and the author is a natural person — leaving little room for machine-only output.
• USThe Copyright Office and the courts require human authorship; purely AI-generated material isn’t registrable.
• AULike South Africa, a common-law system insisting on human “independent intellectual effort” — automated output has been refused protection.

8. How to protect AI-generated software

When copyright is uncertain, don’t bet everything on it. Build protection in layers — most of these don’t depend on proving who authored each line of code.

9. Where the law is heading

South Africa is still working out its AI rules — slowly. A National AI Policy Framework was published for comment in October 2024. A Draft National AI Policy was then gazetted in April 2026, but the government withdrew it within weeks after discovering that some of its references were fabricated and apparently AI-generated. A revised draft is expected for comment around January 2027.

The Copyright Amendment Bill — which would change parts of this area — is still before the Constitutional Court; it was heard in May 2025 and, as at June 2026, judgment was still awaited. The message for business owners is simple: don’t wait for the law to catch up. Put the contracts and records in place now, on the assumption that some AI-generated code may attract weak or no copyright.

10. Frequently asked questions