In 2021, the UK Intellectual Property Office (UKIPO) consulted on potential changes to the UK's IP framework as a result of AI developments (importantly, this was before the increased levels of interest following the launch of ChatGPT etc).
In particular, a number of policy options were considered relating to the making of copies for the purposes of text and data mining (TDM), a crucial tool in the development and training of AI tools. Currently, an exception is in place under UK copyright law to allow copying for the purposes of TDM, but only where it is for the purpose of non-commercial research, and only where the researcher has lawful access to the works.
Alongside retaining the current exception, or simply improving the licensing environment for relevant works, the consultation sought views on three alternative options:
- Extend the TDM exception to cover commercial research.
- Adopt a TDM exception for any use, with a right-holder opt-out – modelled on the recent TDM exception introduced in the EU. This would provide rights holders with the right to opt-out individual works, sets of works, or all of their works if they do not want them to be mined.
- Adopt a TDM exception for any use, with no right-holder opt-out – similar to an exception in Japan for information analysis, and also in Singapore.
In June 2022, the UKIPO published the Government’s response to the consultation, which was in favour of the widest and most liberal of the options under discussion, i.e., a TDM exception for any use, with no right-holder opt-out. Specifically, it was noted that the widening of the exception would ensure that the UK's copyright laws were "among the most innovation-friendly in the world", allowing "all users of data mining technology [to] benefit, with rights holders having safeguards to protect their content". The main safeguard identified for rights holders was the requirement for lawful access.
Following widespread criticism, however, in particular relating to concerns from the creative industries, the then Minister for Science, Research and Innovation confirmed in February 2023 that the proposals would not proceed.
However, following the Sir Patrick Vallance Pro-Innovation Regulation of Technologies Review on Digital Technologies, which called upon the Government to announce a clear policy position, the Government's response confirmed that it had asked the UKIPO to produce a code of practice. The code of practice is intended to provide balanced and pragmatic guidance to AI firms to access copyright-protected works as an input to their models, whilst ensuring protections are in place on generated outputs to support right holders such as labelling. The Government suggests that an AI firm that commits to the code of practice can expect to have a reasonable licence offered by a rights holder. If a code of practice cannot be agreed or adopted, however, legislation may have to be implemented.
Members of Parliament continue to express their views on this issue. In an interim report on governance of AI by the House of Commons Science, Innovation and Technology Committee (dated 31 August 2023), 'the Intellectual Property and Copyright Challenge' was identified as one of the 12 challenges of AI governance. Representatives of the creative industries reported to the Committee that they hoped to reach a mutually beneficial solution with the AI sector, potentially in the form of a licensing framework. Meanwhile, in its report on Connected tech: AI and creative technology (dated 30 August 2023), the House of Commons Culture, Media and Sport Committee welcomed the Government's rowing back from a broad TDM exception, suggesting that the Government should proactively support small AI developers, in particular, who may find it difficult to acquire licences, by considering how licensing schemes can be introduced for technical material and how mutually beneficial arrangements can be agreed with rights management organisations and creative industry bodies. Further, it stressed to the Government that it "must work to regain the trust of the creative industries following its abortive attempt to introduce a broad text and data mining exception".
The Government has indicated that the code of practice will be published in Summer 2023. It now appears likely that it will be published in the Autumn.
In June 2023, the UKIPO provided an update on progress. The aim of the code of practice will be to make licences for data mining more available. Working group members including industry representatives from the AI, technology, creative and research sectors are identifying, developing and codifying good practice on the use of copyright, performance and database materials in relation to AI, including data mining.
There will be a number of practical issues that will need to be navigated carefully, for example, whether attribution is workable in practice. Some forms of generative AI produce content on a word-by-word basis from multiple sources and so no straightforward attribution is available. In addition, it seems very likely that there will be further resistance within the creative industries to any approach that seeks to water down existing IP protections. In particular, the suggestion of using watermarking and labelling to provide protections that support rights holders will need to take into account, and deal with, the ease with such methods of marking can be removed or doctored.