Standing still? The UK government’s position on Copyright and AI

The key conclusions of the Report are summarised below.

Text and data mining exception with opt-out mechanisms and transparency measures

At the beginning of last year, in its consultation on copyright and AI (Consultation) the government proposed a broad text and data mining exception which would permit harvesting data (including copyright works) for commercial purposes. The exception was intended to assist the development of the AI sector in the UK. A great number of creative rights organisations highlighted the disproportionate risk to smaller right holders, while others argued that it undermined the very principle of copyright protection. It has now been abandoned with the government undertaking to gather more evidence, monitor international standards and engage with industry and experts to determine the best approach forward.

The abandonment of the exception is a positive step but its impact is diminished by further prevaricating and delay in the government taking a firm position on copyright.

Transparency measures: should AI developers disclose the sources of their training data?

It was generally agreed during the Consultation debate that a degree of transparency is necessary. However, the extent of transparency obligation and how they should be imposed remained a point of difference. While right holders favoured the introduction of detailed mandatory standards, technology companies argued that such standards “should be high-level and industry-led” in the interests of proportionality. Despite the disagreements, there is clearly a shared interest in greater transparency in the AI development process. The government has accordingly signalled that it will monitor international standards and work with industry and experts to “develop best practice on input transparency”.

Labelling of AI content

There was consensus that wholly AI-generated outputs need to be labelled to combat issues such as misinformation. Most Consultation stakeholders agreed, in principle, that AI-edited or assisted works should not be labelled as AI-generated as this would be misleading to consumers. Again, the government indicated that it would seek further evidence and collaborate with experts and industry to decide on an appropriate way forward.

Licensing

During the Consultation, both the AI sector and creative sector agreed that the government should not intervene in the licensing market. It was agreed that the licensing market for AI is emerging and evolving, and legislative intervention at this stage could harm commercial negotiations between right holders and AI developers. The government has, accordingly, proposed not to intervene, but to keep industry-led approaches to the licensing market under review, including whether the market can resolve any issues in the current licensing regime (such as the natural tendency for licensing to benefit large companies over SMEs and individuals). In line with the government’s overall approach, it proposed to monitor international approaches and their impact on the UK, such as the potential of more permissive licensing regimes to make the UK a less attractive market for AI.

Protection of computer-generated works (CGWs): s.9(3) of the Copyright Designs and Patents Act 1988

The government indicated that this provision was at odds with international standards (for example, the US and EU do not afford any protection to works created without a human author) as well as English copyright law, which requires that a work is “an author’s own intellectual creation”. In the absence of evidence of its positive effects, the government has now confirmed its view on removing the provision entirely.

Digital replicas

Unlike other jurisdictions, there is no personal image right in England and Wales, meaning that individuals have to rely on other means to protect their image. This has become problematic with the growing capabilities of generative AI to create realistic replications of a person’s image and voice. The government therefore sought further information on the commercial and artistic considerations around digital replicas. The creative sector acknowledged the beneficial uses of digital replicas such as offering commercial opportunities for right holders but questioned whether the current system offered enough protection for individuals against deepfakes and other harmful uses of their image or voice. The government has now proposed exploring options for greater levels of protection such as the introduction of a new personality right.

Conclusion

The value of the report lies in the insight into the government’s reaction to the backlash from the creative industries against AI. Ultimately, however, this value is undercut by the lack of a clear, decisive action plan or direction and does not demonstrate a change to the current landscape on copyright and AI. While waiting for any indication of regulatory action on AI in relation to copyright, right holders should continue to take the enforcement of their rights seriously through channels such as litigation and licensing.

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