UK government consults on Copyright and AI

The UK government has launched a Copyright and Artificial Intelligence - GOV.UK today (17 December 2024) which will run until 25 February 2025 and will consult on solutions to achieve the government's key objectives for the AI sector and creative industries in the UK which are:

1. Supporting right holders’ control of their content and ability to be remunerated for its use.

2. Supporting the development of world-leading AI models in the UK by ensuring wide and lawful access to high-quality data.

3. Promoting greater trust and transparency between the sectors.

In the process, the consultation addresses other emerging issues, including copyright protection for computer-generated works, the issue of digital replicas, transparency in relation to AI training materials and the possibility to opt-out of such use, technological protection of works, the relative bargaining power of, and contractual and licensing relationships between, content producers and distributors online, and the clear labelling of AI outputs as such.   

The consultation sets out its specific proposals and queries, including on:

• A data mining exception with rights reservation that would apply to data mining for any purpose including commercial purposes but which would only apply if the user has lawful access to the relevant works (which would include works made available on the internet, those made available under contractual terms such as via subscription and where the rights holder had not reserved the rights in relation to the work via contractual or technological means).  This is a similar approach to that taken by the EU in Art 4 of the Digital Single Market Copyright Directive – although this has led to a great variation across the EU as to how each MS has implemented it.  The consultation suggests that where rights owners had reserved their rights "through an agreed mechanism" then a licence would be required for the data mining. The consultation explores types of rights reservation and the extent to which they can be supported technologically.  There is also a section on encouraging research and innovation which looks at the impact of the current non-commercial text and data mining exception on this too.
• Accelerating the use of technical standards to protect content and its standardisation
• Consideration of licensing practices and the possibly adverse negotiation position of creators – consideration of whether current industry practices meet the needs of creators in terms of individual licensing and also collective licensing.
• Transparency on use of content for AI training – The government sees this as important but is aware of the burden it could put on developers, especially SMEs and that there could be confidentiality issues too. In an indication of where it is currently considered regulation may be headed, the government refers to the EU AI Act Article 53(1)(d) of the EU’s AI Act which is says "recently introduced a requirement that AI training sources are reported. AI providers are required to make publicly available a “sufficiently detailed summary” of training content. Such reporting does not have to be exhaustive. It can be achieved, for example, by listing the main data collections or sets that went into training a model, and summarising other sources. A template to support reporting is currently being developed.  Similarly, California’s Assembly Bill 2013 (AB 2013) will require generative AI developers to disclose information about the datasets used to in, train, test, and validate their models. The bill will require that documentation includes, among other requirements, a high-level summary of the datasets used in the development of the system or service. We intend to engage with the EU and other international partners as they develop their approach and will consider international interoperability."
• The treatment of models trained in other jurisdictions is also being considered.
• The temporary copies exception and its application to AI training
• AI outputs. There is a section devoted to this (section D) which looks at the protection for exclusively "computer generated works" (CGWs) provided under section 9(3) Copyright Designs and Patents Act 1988 and its effectiveness (see paragraph 131) and the criticism of this provision (see paragraph 134 et seq) in relation to how to apply human standards (like "author's own intellectual creation") to a work with an exclusively non-human author. The second criticism raised is that CGW protection (as a distinct category of protection) is not needed – that it either has no effect, or that it has a detrimental effect. The arguments here are both economic and moral, say the government: "The economic argument is that CGW protection has little or no positive incentive effect, so is unnecessary regulation with unjustified costs to third parties. The moral argument is that only human-created works deserve protection, and that protection of CGWs is to the detriment of human creation".  There are also proposals listed to "clarify" the meaning of originality for CGWs.  This could be done by removing an originality requirement altogether – as is the case for existing “entrepreneurial works”, suggests the government, or originality could be defined in some way "For example, it has been suggested that a CGW could be taken to be original if an identical human-authored work would have been considered original".

The consultation will run for 10 weeks. It commences on 17 December 2024 and will close on 25 February 2025.