Jennifer Scott and Hana Ali, in our Corporate & Commercial team, discuss the UK Government's consultation on Copyright and Generative AI.
Generative Artificial Intelligence (AI) programmes are a type of AI that generates content based on data they were trained with, for example, generative AI trained on medical journals will be able to produce summaries of the journals. These types of AI programmes are often trained using large quantities of publicly available data. As a result, copyright holders have struggled to control the use of, and remuneration they receive, for their work.
Following calls from intellectual property professionals and creatives for greater regulation of the evolving field of generative AI,[1] the UK Government has launched an open consultation into artificial intelligence and copyright. They aim to deliver a framework that provides legal certainty while also encouraging creativity and innovation.[2]
The consultation was launched on 17 December 2024 and will close on the 25 February 2025. During this time anyone with an interest in the issue can share their views on the proposals through Citizen Space or by contracting copyrightconsultation@ipo.gov.uk.
As part of the consultation the government has outlined potential approaches to reform the law regarding copyright and AI.
Option 0: Do nothing
While one option would be to have the law remain as it stands, this would allow the current issues and concerns to continue and, possibly worsen, thus not being a preferable option.
Option 1: Strengthen copyright requiring licensing in all cases
An alternative option would be to clarify the existing law to make clear a route for creators to be remunerated and ensure that AI models are only permitted to be trained using protected works where they have an express licence.
While this option could offer greater control for right holders, there are concerns that it would reduce investment in the sector by making the UK a less attractive jurisdiction for AI development and thus lead to no increase in the level of licencing to AI firms.
Option 2: A broad data mining exception
A data mining exception would allow the data mining of copyrighted works, including for use in AI training, without the right holder’s permission. This would be subject to restrictions such as a fair use approach, as adopted in the US. While this would no doubt make the UK a more attractive jurisdiction for AI developers, it would not meet the government’s objective of giving copyright holders control over use of their work.
Option 3: A data mining exception which allows right holders to reserve their rights, underpinned by supporting measures on transparency
The final approach outlined would allow AI developers to train on material to which they have lawful access, but only to the extent that right holders had not expressly reserved their rights. Thus, allowing developers to train AI without the risk of infringement while also ensuring that right holders can control the use of their works and seek remuneration through licensing agreements. This would be coupled with measures to ensure developers are transparent about what works they use to train their models.
This framework is similar to the EU’s exception for text and data mining, provided by Article 4 of the Digital Single Market Copyright Directive (Directive (EU) 2019/790) and the government has expressed a preference for this approach as it would allow for greater control, access and transparency.
Protecting your copyright
In the meantime, owners of copyright can do the following to better protect their rights:
- Label work as protected by copyright identifying the owner;
- Keep evidence of ownership such as the development of the work; and
- If your work can be protected as a registerable form of intellectual property, such as trademarks or registered design rights, ensure you make the relevant applications.
For advice in relation to intellectual property, copyright, the implications of AI and similar matters, please get in touch with our Corporate & Commercial team.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
