Code of Practice on Copyright and Artificial Intelligence – are we in for an endless summer?

As work on the UKIPO’s Code of Practice on Copyright and Artificial Intelligence gets underway, the UKIPO has published its Terms of Reference for the technical working group, together with a list of working group members. Whilst these appear to be largely administrative at first glance, they do shed some further light on the working group’s aims and objectives and the intended scope of the code of practice.

Background

In June last year, following its consultation on AI and IP, the UKIPO announced its intention to introduce a new exception for copyright and database rights which would allow text and data mining (“TDM”) for any purpose, with no ability for rights holders to opt out or contract out. However, following significant backlash from those in the creative industries, those plans were scrapped.

In March 2023, in an attempt to try to address the balance between the rights of AI developers and IP rights holders in this context, the UK Government announced that the UKIPO would be producing a new code of practice on copyright and AI (see our previous blog). That announcement indicated that this code of practice would be ready “by the summer”, but we have heard very little on it since then. However, at the end of June, the UKIPO published a brief summary update, together with a copy of its Terms of Reference and list of working group members.

What do the update and Terms of Reference say?

The update confirms that working group meetings started a few weeks ago, on 5^th June, and provides details of the current working group membership. As expected, the members include a mix of entities and associations from both the creative and AI sectors, including the British Copyright Council, Copyright Licensing Agency and various media and publisher associations on the creative side; and Deepmind, Microsoft and Stability AI on the AI side.

Details on the content of the code of practice itself remain light, but the UKIPO has confirmed that the aim is to make licences for data mining more readily available, whilst ensuring protection for rights holders. Importantly, the Terms of Reference clarify the scope of IP rights that will be covered - it will not be limited to copyright alone, but will also capture database rights, rights in performances and moral rights.

In addition, the Terms of Reference list the stated aims and objectives of the working group as follows:

• identifying any creator concerns relating to the use of copyright works, performances and databases by AI systems and users;
• identifying any barriers to access to copyright works, performances and databases by AI systems and users, including for the purposes of TDM;
• outlining ways in which any identified concerns and barriers can be addressed;
• setting out commitments and expectations in relation to AI firms’ use of protected material and the rights holders who own protected material; and
• identifying, developing and codifying good practice on the use of copyright, performance and database material in relation to AI, including TDM.

These help to give a broad indication of the type of thing we might expect to see in the code of practice.

Comment 

Whilst details continue to be thin on the ground, and many questions still remain, it is good to see that work has begun in earnest on this and that players from both sides of the debate are engaging.

Of perhaps most significance from the latest update are the comments on the scope of IP rights that will be covered. This is broader than we might have anticipated, covering not just copyright but also database rights, performance rights and moral rights. However, as we’ve seen from the recent Getty Images dispute (see our blog here), even this wider list doesn’t capture the full spectrum of IP rights that may be at play (e.g. trade marks).

Perhaps appreciating the challenge of finding a workable balance, there is also a hint of the Government seeking to take a step back from the front line and put the responsibility for finding a solution onto the AI and creative sectors - “The Government considers that this is an issue that industry can, and should, seek to fix itself…” - although it does not rule out the possibility of new legislation being required. Whether that is right or not, recent reports in the Financial Times suggest that certain AI and media companies are already looking to tackle this issue themselves, by seeking to reach direct agreements around the use of content for AI training purposes.

We’ll continue to keep a close eye on this, but we suspect we might be in for a long (if not endless) “summer”.

For more information on the risks and opportunities around AI, explore the different publications and podcasts from our Regulating AI series.