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ChatGPT Raises Some Thought-Provoking Legal Questions for South Africa
What is ChatGPT?
We are all familiar with the idea of Artificial Intelligence (AI) portrayed in Film, Television, and literature. We have read about the experiments where AI defeats a Chess Grandmaster, composes a symphony, or creates a work art. For most of us, AI is far removed. The realm of tech companies and part of a future that is farther away than it is around the corner. ChatGPT is on course to change that.
ChatGPT is an AI chatbot, launched by OpenAI in November 2022, and is perhaps the first time that functional, seemingly intuitive, and human like AI has been accessible to the public.
Since its launch, ChatGPT has garnered mostly positive reactions. It has been labelled “the best artificial intelligence chatbot ever released to the general public”[1] , praised for being able to generate “impressively detailed” and “human-like” text [2], on a student assignment, generated text that was on par with what a good student would deliver [3], and called “part of “the generative-AI eruption” that “may change our mind about how we work, how we think, and what human creativity really is” [4].
ChatGPT’s capabilities include, but are not limited to, the ability: to have human-like conversation, to write and debug computer programs; to compose music in style of a particular artist, to write plays and fairy tales; to write student essays; to answer test questions, to write poetry and song lyrics; to simulate an entire chat room; and to play games.
What Questions does ChatGPT and AI Raise?
AI appears to be set to have a profound impact on the way we live our lives and the way we do business.
The African Union recognised the importance of AI through the Sharm El Sheikh Declaration of 2019.
South Africa’s Minister of Communications & Digital Technologies alluded to AI’s importance for the future of Africa at the Africa ICT Ministers Forum in November 2021 [5].
Now, ChatGPT has seen wide use abroad, with more and more South Africans exploring what it has to offer, with some of us turning to the AI to solve South Africa’s problems [6].
Like all technological advances it may be too soon to determine what ChatGPT’s ultimate net effect on society will be, but South Africa does not have laws specifically regulating AI and the following questions warrant more than a passing thought:
Cyber Security
Phishing, Malware and Business Email Compromise (BEC) are continuous threats to South African business. A recent judgment in the Johannesburg High Court emphasises this risk, especially for professionals working in the consultancy services industry[7].
ChatGPT has the ability to generate emails, write programmes and code malware, all of which could be utilised to commit fraud.
Given ChatGPT’s apparent and ever-increasing levels of sophistication, businesses will need to ensure that proper safeguards are in place to prevent attempted fraud, which may be more difficult to detect.
Education
Almost immediately following the release of ChatGPT, reports emerged of both university students and school learners using the AI to write essays and assignments [8]. Schools and universities will have to implement tools that detect the use of AI on submissions to make sure that the work is really that of the student.
At the same time, our institutions will have to recognise the sweeping potential benefits that AI, such as ChatGPT, may bring to students, including access to information, academic support, real time answers to questions, and assistance with drafting, proof-reading, and editing.
Copyright & Originality
Copyright hinges on the fact that an artist, writer, musician, poet, or photographer, for example, applies their unique perspective and skills to produce a work that is novel enough to be regarded as something new.
Now, even those of us without any creative instinct could prompt an AI to write a song, a poem, or an essay.
ChatGPT has the ability to write lyrics in the style of any musician whose work is available on the internet. In fact, one user has already asked ChatGPT to do just that [9].
All that is required is for the user to insert the prompt “write song in the style of [insert name of artist]” and ChatGPT generates the words in far less time than the human creative process. It follows that the approach could be applied to any form of written expression.
The opportunities to explore and exercise human creativity aside, questions worth asking include:
- Will this come to be regarded as an instance of AI infringing an artist’s copyright?
- Will the ChatGPT user be required to pay royalties to the artist (perhaps similar to sampling)?
- What happens when the general public can’t distinguish between the artist’s original work and the AI generated work?
- Would the AI user hold and enjoy the protection afforded by intellectual property laws in respect of the work he or she produces using AI, or will those rights be afforded to the AI itself?
AI & Personal Information
Machine learning is carried out through the analysis of data. That data is used to train, teach, and test AI, develop algorithms, and any number of uses, ranging from marketing to trend analysis, which a business may choose to pursue.
In age of the internet and social media, personal data is captured with almost every click or swipe. The extent of personal data currently being processed and captured via the multitude of social media apps alone is set to grow exponentially in the coming years.
How will the use of personal data by AI be regulated? How will AI comply with the Protection of Personal Information Act which is now in effect? Will business be held accountable for the way their AI uses our personal information?
Legal Personality, Capacity and Liability
South Africa recognizes both Natural Persons (private individuals) and Juristic Persons (Companies, Trusts, Associations etc). This is the recognition that allows a private individual to take legal action against a company for the actions of its employees, the recognition which allow a trust to own property and the recognition which allows a business to enter into a contract in its own name.
Will AI be recognized as a Juristic Person with the full rights and capacity afforded to Juristic Persons?
Would you be able to contract with AI for delivery of a service and what recourse would you have if it fails to perform? Could you reach consensus with AI? Is AI capable of reaching a so called “meeting of minds”?
Would AI be required to identify itself as AI prior to entering into an agreement or offering a service to a natural person?
Or will AI simply be regarded as the agent of the user, its principal? How would the law establish the agent /principal relationship when AI is intended to learn and act independently?
Conclusion
These are some of the questions that AI may pose in the future, a future that may be closer than we realize.
A considered, practical, and easily understandable legal framework is required to address the challenges and opportunities AI may present as we move into a world where technology becomes embedded in our day to day lives beyond the extent of a smartphone always on hand.