Artificial intelligence and IP in Africa

Artificial intelligence, while not a novel concept in technological innovation, has experienced a surge in popularity following the COVID-19 pandemic. This is particularly evident with the introduction of generative AI, such as Chat-GPT, which has demonstrated the capability of AI to produce works eligible for intellectual property protection. Beyond its potential to create intellectual property, AI also poses risks of infringing on existing intellectual property. This includes generating content that replicates or closely mimics copyrighted works, reverse-engineering patented processes, and creating counterfeit products and trademarks. These activities raise significant legal and ethical concerns.

 

The position of IP regulators across several African countries in addressing the use of AI in the field of IP is yet to be fully formed. However there have been several developments over the years in several African countries on addressing AI and IP. In 2021, the Companies and Intellectual Property Commission of South Africa granted the world’s first patent on an invention created by an artificial intelligence (“AI”) inventor[1]. However, it has been argued that an important point to note in the South Africa decision is that patent applications in South Africa are not subject to a formalised patent-examination procedure of the kind found in the U.S., Canada, Europe, and many other jurisdictions. The same application accepted in South Africa was refused in the United Kingdom[2], Europe, and the United States[3].

 

In other African countries such as Rwanda, Benin, Egypt, Morocco, Mauritius, Tunisia, Sierra Leone, and Senegal the most relevant development is the development of national AI strategies. These strategy documents provide guidance on the country's strategic roadmap to leveraging AI in their economy and some guidance on the approach to Intellectual property protection in the field of AI. For example, the Mauritius AI strategy of 2018[4] includes few provisions on how the government may deal with IP and AI development in Mauritius such as the provision of fiscal incentive for companies with IP asset in the AI field. The strategy document also includes an Intellectual Property Promotion Scheme (IPPS) initiative aimed at encouraging innovation in Mauritius by helping individuals, businesses, and R&D institutions protect their innovations.

 

The Egypt National IP strategy[5] also addresses issues regarding AI and IP. In the status quo assessment of the state of AI in Egypt and the country’s readiness to embark on a journey of AI adoption contained in its strategy Inadequate awareness of the importance of intellectual property and its protection was identified as one of the weaknesses affecting AI adoption in Egypt. To address existing weaknesses, the government plans to collaborate with relevant agencies to issue necessary legislation and regulations. This includes expanding into areas such as data anonymization, intellectual property rights (IPR), and patent law. 

 

On a regional level, the African ICT and Communications Ministers recently endorsed the Continental Artificial Intelligence (AI) Strategy and an African Digital Compact to accelerate digital transformation in Africa[6]. The virtual meeting, held from June 11 to 13, 2024, involved over 130 African ministers and experts. The AI Strategy aims to guide African countries in using AI for development, promoting ethical use, minimizing risks, and leveraging opportunities. It emphasizes a people-centered, development-oriented approach to building AI capabilities in infrastructure, talent, datasets, innovation, and partnerships while ensuring adequate safeguards against threats. According to the African Union, both initiatives will be submitted to the African Union Executive Council in July 2024 for consideration and adoption and are part of Africa’s contribution to the Global Digital Compact and the United Nations Summit of the Future in September 2024.

 

For AI and intellectual property (IP) in Africa, this strategy presents several key implications. First, the emphasis on ethical AI use and risk mitigation establishes a framework for protecting IP and data privacy, which is crucial for fostering a secure environment for innovation. Second, by investing in human capital through education, skills development, and support for researchers, Africa can boost its capacity to generate homegrown AI technologies, leading to increased IP creation and ownership. Furthermore, the focus on inclusive and diverse AI development ensures that a broad spectrum of African society benefits from and contributes to the AI landscape, enriching the pool of IP assets.