UK Government will introduce a new text and data mining copyright exception in response to AI and IP consultation

The UK government has published its response to its consultation on Intellectual Property and Artificial Intelligence. Back in 2021, the UK IPO undertook a consultation on AI and IP covering: copyright in works made by AI; text and data mining using copyright material; and patents for inventions devised by AI. The consultation ran from 29 October 2021 to 7 January 2022. It focused on three questions:

 

1. Copyright protection for computer-generated works (CGWs) without a human author. These are currently protected in the UK for 50 years. But should they be protected at all and if so, how should they be protected?

2. Licensing or exceptions to copyright for text and data mining (TDM), which is often significant in AI use and development.

3. Patent protection for AI-devised inventions. Should we protect them, and if so, how should they be protected?

In the response, the Government’s answers to these questions are summarised as follows:

1. For computer-generated works, no changes to the law are being considered. There is no evidence at present that protection for CGWs is harmful, and the use of AI is still in its early stages. As such, a proper evaluation of the options is not possible, and any changes could have unintended consequences. The law will be kept under review and Government could amend, replace or remove protection in future if the evidence supports it.

2. For text and data mining, Government is planning to introduce a new copyright and database exception which allows TDM for any purpose. It is worth recalling that the UK already has a limited text and data analysis exception under s 29A CDPA, which was introduced taking advantage of the possibilities under Article 5(3)(a) of the InfoSoc Directive. Under the planned new exception, rightholders will still have safeguards to protect their content, including a requirement of lawful access.

3. For AI-devised inventions no change to UK patent law are being currently considered. Most respondents felt that AI is not yet advanced enough to invent without human intervention. But this area of law will be kept under review to ensure that the UK patent system supports AI innovation and the use of AI in the UK. Government will seek to advance AI inventorship discussions internationally to support UK economic interests.

Image: Riana Harvey

The key change to note at this stage, then, is the introduction of a TDM copyright and database exception. The report states that the Government will identify suitable legislation to make the required changes in due course. The intention of the new exception will be that rightholders will no longer be able to charge for UK licences for TDM and will not be able to contract or opt-out of the exception. The new provision may also affect those who have built partial business models around data licensing. As stated, the main safeguard for rightholders will be the requirement of lawful access. That is, rightholders could choose the platform where they make their works available, including charging for access via subscription or single charge. They will also be able to take measures to ensure the integrity and security of their systems.

Below is an extract from the press release from the UK IPO:

"Following this consultation, the government intends to amend copyright law to make it easier to analyse material for the purposes of machine learning, research and innovation. This will promote the use of AI technology, and wider “data mining” techniques, for the public good."

"Data mining is where software is used to analyse material for patterns, trends and other useful information. The government intends that anyone with lawful access to material protected by copyright should be able to carry out this analysis without further permission from the copyright owner. Among other uses, data mining can be used when training AI systems. For example, machine-learning software which has been trained on large repositories of computer code is able to intelligently suggest new code to programmers."

"This data mining provision will take advantage of the UK’s ability to set its own copyright laws now that we have left the EU and will put the UK’s copyright framework among the most AI and research friendly in the world. It will help make the UK a location of choice for data mining and AI development, supporting the government’s ambition for the UK to be a global leader in AI innovation and research."

"This initiative is targeted and will preserve wider copyright protection, including copyright owners’ ability to control who has access to their works. It will bring benefits to a wide range of stakeholders in the UK, including researchers, AI developers, and cultural heritage institutions."

"Science & Innovation Minister George Freeman said: 'Now that the UK has the ability to set our own copyright laws for the first time in decades, we want to ensure the UK continues to have one of the best intellectual property frameworks in the world. IP is key to innovation. That’s why, following our consultation earlier this year, we intend to bring the law up to date, embracing the challenges and opportunities presented by rapid developments in technology. The UK will continue to engage with partners around the world, seeking to lead global conversations as we unleash our potential as an innovation nation. Our new UK rules on copyright and data mining will act as a catalyst for our innovators to flourish, helping ensure the UK’s IP system remains a powerful enabler for ground-breaking R&D.'"