Intellectual property law faces a persistent question: when does inspiration cross into imitation? Advocate Thato Moloto, a legal practitioner and lecturer at North-West University, says the word “balance” captures the core tension.

The Access Versus Protection Dilemma

On one side of the scale lies access—the principle that knowledge, inventions, and creative works should be available for others to learn from, use, and build upon. On the other lies protection, ensuring creators, inventors, and businesses can benefit from their investments of time, skill, and resources.

“On one side, we are saying we need more access and need to make inventions more available to people,” Moloto explains. “On the other side, we are saying we need to encourage people to create more, so we need stronger protection.”

The challenge is that both arguments can be valid. Protecting too little may reduce incentives to create, while protecting too much can stifle future innovation. This tension is especially acute in South Africa, where innovation cannot 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 this raises its own concern: “If you are giving so much access, it doesn’t encourage me to create or to invent or to trade.”

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Originality and the Limits of Borrowing

The line between inspiration and infringement is particularly familiar in creative work. Artists influence artists, writers respond to writers, and musicians work within long-standing traditions. The law does not require every new work to emerge from an intellectual vacuum.

“Originality doesn’t mean it has never been seen before,” Moloto notes. A work can be influenced by something else, provided sufficient original skill and labour went into producing something that exists in its own right—something more than a “slovenly copy.”

In music, there are only a limited number of chord progressions, and nearly all have been used. Literature faces similar constraints, with stories continually echoing ancient works like Homer’s Iliad. The legal question, then, is not whether something resembles a prior work, but what the new creator has added.

There are, however, limits. A translation, for example, cannot simply be treated as an entirely independent work divorced from the rights in its source material; permission may still be required. The law must draw boundaries around creativity without imprisoning it within them.

Artificial intelligence complicates this further. Can a non-human system be an author or inventor?

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Moloto cautions that the question assumes an anthropomorphic view of AI: “For you to ask that question, you have to accept some sort of anthropomorphic characterisation of AI. You have to give it some sort of personality.”

South Africa became notable internationally when a patent naming the AI system as inventor was granted here. But the result requires context. South Africa’s patent system has historically been based on formal examination rather than the substantive search-and-examination processes used in many other jurisdictions.

The shift toward substantive search and examination is underway, with capacity being developed at the Companies and Intellectual Property Commission. This matters because the strength of an IP system depends not only on how much it protects, but also on what it decides deserves protection.

Technology further complicates enforcement. The internet ignores geographical boundaries, allowing a work created in one jurisdiction to be copied and distributed globally almost instantly. Rights may exist in one place while enforcement must be pursued in another.

“How do we protect, spread and enforce our rights across borders?” Moloto asks—a question that may define intellectual-property law in the digital era.

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Evolving Patent Examination and the Question of AI Authorship

Under South Africa’s traditional patent system, applications were evaluated primarily for compliance with filing requirements rather than undergoing substantive examination of their scientific or inventive merit. This approach differs from the search-and-examination processes used in many other jurisdictions, where the deeper technical aspects of each application are reviewed in detail.

National Balance and Evolving Standards

South Africa cannot necessarily import another country’s approach to intellectual property wholesale. The country’s economic and developmental circumstances create competing priorities.

At NWU, for example, research ranges from Prof Klaus Beiter’s work on IP and socio-economic rights to Dr Donald Mukwevho’s work involving traditional cultural knowledge and expressions, and the trade dimensions of African intellectual property.

Moloto describes his own work as occupying something of a middle ground.

“I’m interested in the idea of it as property,” he says. “I like the idea of pseudo- or quasi-property and the ideas of what you can and what you shouldn’t be able to own.”