Are we nearly there yet? UK edges closer to finding solutions on copyright and AI

As 2024 draws to a close, AI continues to dominate IP headlines. This week is no exception, with the UK government launching its promised consultation on AI and copyright on Tuesday.

This consultation, which will be open until 25 February, is relatively far reaching, covering a number of important topics. But, perhaps most importantly, it contains the Government’s latest proposals on (i) how best to balance the rights of AI developers and rights holders when training generative AI; and (ii) copyright protection for so-called “computer-generated works" (CGWs) – that is, works generated by a computer where there is no human author.

AI training and copyright

As readers of this blog will know, the UK debate around how best to balance the rights of AI developers and rights holders when training generative AI has been raging on for a while now (see our blogs here, here and here).

As things stand, the UK only has a very narrow copyright exception for text and data mining (TDM) which is limited to TDM for non-commercial research purposes. This renders it of little use to most providers of generative AI. Previous proposals to introduce a broader UK TDM exception (with no ability for rights holders to reserve their rights) and to broker a voluntary Code of Practice on Copyright and AI have failed.

In a bid to find a workable solution, this time around the Government has put forward four policy options for consultation:

1. Do nothing and leave our existing copyright laws as they are.
2. Strengthen copyright by requiring express licences to be in place in all cases for training AI models.
3. Introduce a broad TDM exception with few or no restrictions (as per the already failed attempt).
4. Introduce a new TDM exception which applies to TDM for any purpose, subject to rights holders having the ability to reserve their rights, and which is underpinned by supporting measures on transparency (including around material used to train models and how that material was acquired).

As expected, the Government’s preferred approach is the last of these, which largely mirrors the approach taken in the EU. It believes that this approach would have the potential to meet its core objectives of supporting rights holders’ control of their content, giving AI developers wide and lawful access to high-quality data, and promoting greater transparency. However, drawing on the EU’s experiences, the Government acknowledges that in order for this to be effective there needs to be a simple, standardised, machine-readable way for rights holders to reserve their rights. It is therefore also seeking views on whether and how it can support work to improve rights reservation tools and drive their adoption.

Computer-generated works 

The rapid rise and popularity of generative AI tools has also led many to question whether outputs from generative AI tools may be protected by copyright. 

The UK is one of the few countries that provides copyright protection for CGWs, but there are questions around how those rules currently apply. For example, whether the usual originality requirements apply and, if so, whether a CGW could ever meet them (given their human-centric nature). 

Acknowledging these issues, the Government is seeking views on potential reforms to protections for CGWs and has put forward three policy options – maintain the existing provisions as they are; amend them to make them clearer; or get rid of them altogether. Whilst the Government is seeking views on all three, the consultation document indicates that it is currently minded to reject the option to maintain the existing CGW provisions and, should the consultation reveal insufficient evidence of the positive effects of protecting CGWs, its current preference would be to remove these provisions altogether – bringing the UK more into line with the position in the US and most EU member states.

Other topics for consultation

In addition to the above, the Government is consulting on several other important topics, including: how AI models that have been trained in other jurisdictions should be treated; infringement and liability relating to AI-generated content; whether and how the Government should support licensing (including collective licensing) of copyright works to AI developers; digital replicas (aka deepfakes) and whether the current legal framework is sufficient to provide individuals with control over use of their likeness; and labelling of AI outputs.

Comment

As anyone who has been following this will know, many of these are complex issues with no easy answer. However, the launch of this new consultation hopefully marks the start of a process in the UK that will look to draw a line in the sand and bring some much needed legal certainty for everyone on some of the main issues surrounding copyright and AI. 

With tensions high and strong views across the board it will be fascinating to see how this all plays out, but the UK Government will certainly be hoping it’s a case of third time lucky on the TDM side of the equation!