“We paid for it, so we own it” is the assumption that costs South African businesses the most. For software, it’s often wrong. Here’s how ownership actually works when AI is in the mix — and exactly what to sign.
Authorship and ownership are two different things
Copyright starts with the author, and by default the author is the first owner. So you have to answer “who is the author?” before you can answer “who owns it?”. For software, the author is defined by control, not by typing.
The Supreme Court of Appeal has confirmed you don’t have to be the programmer to be the author — you have to be in charge of how the program is made.
AI-assisted vs fully AI-generated: the control test
The difference decides whether copyright is strong or shaky. The SCA in Bergh made clear that just handing over requirements and checking the result is not control.
Looks like control (stronger claim)
- ✓Choosing the architecture and key design decisions
- ✓Iterating prompts; rejecting and re-generating output
- ✓Editing, refactoring and integrating the code
- ✓Writing tests and deciding what ships
- ✓Keeping records of all of the above
Looks like mere requirements (weaker claim)
- ✕A single high-level prompt (“build me an X”)
- ✕Accepting the output after a quick check
- ✕No design input, edits or testing of your own
- ✕No record of who did what
Employees vs contractors
If your employee writes the software as part of their job, you own it automatically — using AI doesn’t change that, as long as the work still qualifies for copyright.
An independent contractor is the opposite. Paying them does not transfer copyright to you, because software isn’t on the Act’s “commissioned work” list.
King v SA Weather Service confirms the employee rule in practice: programs an employee wrote in the course of employment belonged to the employer (there, a state body). The lesson cuts both ways — make sure your contributors are properly characterised, and get assignments from anyone who isn’t a true employee.
What you actually need to sign
To own code from a contractor, agency or AI dev shop, you need a written assignment, signed by them. This isn’t a formality you can skip — the Act says so.
A good AI-era assignment also captures the non-copyright assets
Because some AI-generated code may not be copyright at all, a copyright assignment alone can leave gaps. A strong agreement also transfers or licenses:
- •present and future copyright
- •the source code and repositories
- •prompts, configurations and model settings
- •build scripts, schemas and documentation
- •accounts, credentials and access
- •confidential know-how
- •a warranty that they had the right to use all inputs
- •disclosure of the AI tools used + open-source compliance
What the AI coding tools’ terms actually give you
The good news: none of the big tools wants to own your output. The catch: their terms only settle things between you and them — they can’t make South African copyright exist, fix a missing assignment from your developer, or clear third-party and open-source overlap.
The honest summary
Read tool terms as helpful risk-allocation between you and the vendor — not as proof you own the code under South African law. Your ownership still depends on human control over the making, your employment and contractor paperwork, and clean open-source practice.
Frequently asked questions
Who is the legal "author" of AI-written code?
The person who "exercised control over the making" of the program (s 1 of the Copyright Act) — not necessarily who or what typed it. Strong control looks like Haupt (in command); weak input looks like Bergh (mere requirements).
Does my employee or contractor own the code they write with AI?
Employees on the job: the employer owns it (s 21(1)(d)). Independent contractors: you do not own it just because you paid — you need a written assignment signed by them (s 22(3)).
Does paying a developer mean I own the software copyright?
No. Software is not on the Copyright Act's "commissioned work" list (which covers photographs, portraits, gravures, films and sound recordings), so payment alone does not transfer copyright. Get a signed written assignment.
Do Copilot, ChatGPT, Amazon Q or Google give me ownership?
Between you and the provider, broadly yes — they do not claim your output. But those terms cannot create South African copyright, cannot replace your developer's assignment, and do not clear open-source or third-party overlap.
We only have an email saying "all IP is yours" — is that enough?
Risky. An assignment is only effective if in writing and signed (s 22(3)). Get a proper signed assignment, and also transfer the repository, prompts, documentation and confidential know-how in case some code is not copyright.
Sources & authorities
- 1.Copyright Act 98 of 1978 — s 1 (author), s 21 (ownership), s 22(3) (written assignment) (WIPO Lex)
- 2.Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd [2006] ZASCA 40; 2006 (4) SA 458 (SCA)
- 3.Bergh and Others v Agricultural Research Council [2020] ZASCA 30; [2020] 2 All SA 637 (SCA)
- 4.King v SA Weather Service [2008] ZASCA 143; 2009 (3) SA 13 (SCA)
- 5.GitHub Terms of Service (ownership of Input/Output; Copilot indemnity)
- 6.OpenAI Terms of Use — ownership of content
- 7.AWS Customer Agreement (s 6.1, “Your Content”) & AWS Service Terms (s 50, Amazon Q)
- 8.Google Cloud Service Specific Terms (s 20 Generative AI Services; s 18 training restriction)
Every authority above was checked against its primary source in June 2026. This page is general information about South African law, not legal advice.
Make sure you actually own your code
We draft and review IP assignments, developer and contractor agreements, and AI-aware development contracts — so paying for software also means owning it.