[Guest post] NEWSFLASH - The UK’s New Consultation on AI and Copyright: Purr-suing Balance?

Earlier today, the UK Government launched a public consultation on copyright and Artificial Intelligence (AI), including unlicensed text and data mining (TDM) and computer-generated outputs. Katfriends Phil Sherrell and Toby Bond (both Bird & Bird) explain what this is all about. Here's what they say:

NEWSFLASH - The UK’s New Consultation on AI and Copyright: Purr-suing Balance?

by Phil Sherrell and Toby Bond

The UK Government today announced the opening of its long-awaited consultation into copyright and AI, inviting views from industry on one of the hottest topics in IP law.

Here we go again with TDM

As widely predicted, the Government is seeking views on the introduction of a new copyright exception, which is intended to support AI training but allow rightsholders to easily reserve their rights, alongside introducing transparency requirements on AI firms. By way of reminder, the UK decided not to implement the DSM Directive (the deadline for which fell after the Brexit vote) and, as a consequence, only has a very narrow TDM exception at present, in s29A CDPA (limited to non-commercial research). The new exception on which views are sought would align the UK more closely with the EU position under Article 4 DSM Directive.

This is not the first time the Government has consulted on amending s29A. Following a general call for views on AI and IP in 2020, the UKIPO ran a consultation at the back end of 2021 on policy options for the UK existing exception under s29A. This consultation informed a 2022 proposal to extend the TDM exception to commercial activities without an opt-out for rights holders. However, in February 2023, the Government decided not to proceed [IPKat here]. The Government’s focus then shifted to developing a voluntary code of practice for generative AI, such that "an AI firm which commits to the code of practice can expect to be able to have a reasonable licence offered by a rights holder in return”. After a series of workshops with a working group of stakeholders failed to reach agreement, the proposal was officially abandoned in February 2024.

Reginald has already begun
drafting his response:
what are YOU waiting for?

While the approach now proposed is similar to Article 4 of the DSM Directive, the consultation seeks views on how opt-outs should work in practice, including the role for technical standardisation.

And with computer-generated works..

The Government is also seeking views on whether the section 9(3) computer-generated work provision under the CDPA should be maintained, reformed or removed. As with TDM, this is the second time around the block for this issue, which formed part of the 2021 consultation. Last time around the UKIPO decided not to change the law, indicating that “there is no evidence at present that protection for CGWs is harmful, and the use of AI is still in its early stages.” With the explosion in generative AI since 2022, now appears to be a make or break moment for computer-generated works protection in the UK with the consultation document suggesting that “should consultation reveal insufficient evidence of positive effects from CGWs protection, [the Government’s] preference will be to remove it.”

Broader issues

Not content with lighting a fire under one already hot topic, the consultation also seeks views on many others including the TDM exception for non-commercial research, bilateral and collecting licensing, training data transparency obligations for AI developers (à la Article 53(1)(d) of the EU AI Act), infringement and liability relating to AI-generated content, the treatment of models trained outside the UK, deepfakes and AI output labelling, and personality rights, as well as several other emerging AI issues.

The consultation is likely to elicit strong views from both sides of the debate; some rightsholders will be dismayed at the potential weakening of their rights in a very important market for creators, whereas AI developers will want to know how any proposals will apply in practice.

The consultation runs until 25 February 2025. With a total of 47 questions to answer, interested parties will need all the time they can get to prepare their responses if they want to inform the future of copyright policy in this key area.