Summary
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 then 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 Conservative Government's response confirmed that it had asked the UKIPO to produce a code of practice. The code of practice was 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 suggested that an AI firm that committed to the code of practice could expect to have a reasonable licence offered by a rights holder. If a code of practice could not be agreed or adopted, however, legislation may have to be implemented.
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 former Government's rowing back from a broad TDM exception, suggesting that it 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".
In its response to the House of Commons Culture, Media and Sport Committee's report on AI and the creative industries, the former Government confirmed that it was not proceeding with a wide text and data mining exception and reiterated its commitment to developing a code of practice to "enable the AI and creative sectors to grow in partnership".
In the report of the House of Lords Communications and Digital Committee on 'Large Language Models and Generative AI' (published 2 February 2024), the Committee noted that the voluntary IPO-led process was welcome and valuable but that debate could not continue indefinitely, and if process remained unresolved by Spring 2024, the Government must set out options and prepare to resolve the dispute definitively, including legislative change if necessary. However, following reports in The Financial Times that the code of practice had been shelved, this was confirmed by the Government in its response to the AI White Paper consultation published on 6 February.
Impact
Following the change of Government, monitor closely for the new Government's proposals in relation to AI, both generally and in relation to the treatment of copyright works. Whilst the King's Speech made reference to the Government intending to "…seek to establish the appropriate legislation to place requirements on those working to develop the most powerful artificial intelligence models", no further information has yet been provided. Given the reference to 'appropriate legislation', we anticipate that there will be further consideration of this issue, including we assume consultation with relevant stakeholders.