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UK policy change for AI and IP

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United Kingdom

On 28 June 2022, the UK's intellectual property office (UKIPO) published its response to the most recent consultation on IP and AI, which had raised a number of questions as to how the UK's copyright and patent system should deal with the emerging technology. We discussed the consultation back in November, setting out the three key focus areas and possible policy change options stemming from each.

Following the consultation, the government has (so far) committed to one policy change, which will have significant implications for both AI developers and rights holders—to expand the text and data mining exception in UK copyright legislation to include commercial purposes.

Background

As a reminder, the UKIPO's most recent AI consultation was concerned with the following three areas:

  1. Copyright protection for computer-generated works (CGW) without a human author, and whether this protection should remain unchanged, be reduced in scope or duration, or scrapped altogether;
  2. Licensing or exceptions to copyright for text and data mining (TDM), and whether the government should improve the licensing environment for TDM, broaden the scope of the TDM exception (to varying degrees), or do nothing; and
  3. Patent protection for AI-devised inventions, and whether the government should expand the definition of "inventor" to include either humans responsible for AI systems and/or the AI system itself, develop a new type of protection, or do nothing.

Summary

After considering stakeholder views from a wide range of industries, including creative, tech, pharmaceuticals, academia, and legal, as well as number of individuals, the government published its full response to the consultation on 28 June 2022.

In summary, the government has decided to make no changes to the law in respect of copyright protection for CGW and patent protection for AI-devised inventions. In respect of TDM however, it has set out its plan to introduce a new TDM exception for any purpose (with no opt out provision for rights holders).

TDM for all (and all for TDM?)

As explained in the consultation, "text and data mining is the use of automated computational techniques to analyse large amounts of information to identify patterns, trends and other useful information", which often means copying the material (some of which will be copyright-protected) in order to analyse it. TDM can be used to develop and "train" AI, and to enable research, e.g., the analysis of medical and scientific data, business intelligence and data analytics. TDM automates and speeds up what would usually be done by eye such as reading a document, making notes and assessing relationships, patterns and trends. As such, to engender innovation in this field it is key to allow access to content that will advance and improve the quality of research.

As things currently stand, there is an exception in the UK's copyright legislation that allows AI developers (and others) to use TDM but only in respect of non-commercial research. The government has now indicated that a broader TDM exception will be introduced for all purposes, including commercial TDM—an approach wider and more permissive for AI developers than that taken in Europe. The new exception will apply in respect of both copyright works and database rights.

The absence of an 'opt out' provision for rights holders in the proposed change is another example of the UK's post-Brexit divergence from the EU approach to AI-related policy change[1].

The UK government has elected to pursue the most far-reaching of the five TDM options presented in the consultation, and one that sparked some concern among respondents—largely due to the fear it could prejudice rights holders' legitimate interests and shift the balance unfairly against creators. The government has attempted to tackle this however by stating that it will ensure safeguards are in place to protect rights holders' content, including that lawful access to the content will be a prerequisite of the TDM exception. In other words, rights holders will be able to choose the platform on which they make their works available and can charge others for access to it.

While far-reaching, this option is the most supportive of AI and innovation generally. A clear benefit is that developers will no longer need to limit themselves to using out-of-copyright works and licensed works to train AI systems. This is particularly encouraging for smaller developers, for which a convoluted TDM licencing landscape may have been too great a financial obstacle. It may also help to mitigate data bias issues often found in AI systems.

Overall, a broad TDM exception is a welcome one so long as the proposed safeguards, in practice, are able to keep the interests of AI developers and creatives at a relatively even keel.

No change there then…

Protection for CGW

The government has ultimately decided to make no changes in respect of 50-year copyright protection for CGW. The consensus from respondents was that the current CGW protection has not (yet) proved to be harmful and it at least provides some legal certainty for the time being, although many respondents did advocate reducing the duration of the protection.

The primary concerns among respondents, particularly in academic and creative fields, were that:

  1. Copyright protection for CGW is incompatible with the originality requirement for works confirmed in Cofomel, i.e., that works be the 'author's own intellectual creation'; and
  2. Such long-term protection for CGW could 'crowd-out' human creators who might not be able to compete with the scalability of AI-generation of works. There is also some concern that a high-volume of AI-generated works could increase the risk of human authors being found to infringe copyright.

The government has however stated that it will continue to monitor CGW closely, indicating that it would be open to change in the future.

AI inventorship for patents

The final area of the latest consultation—related to patent inventorship by AI systems—has also not prompted any immediate policy change. The discussions around this area are particularly complex, but the majority view from respondents is that: (i) UK patent law currently does enough to protect inventions made using AI; and (ii) any hasty changes would be premature and problematic.

Whilst some respondents opined that the introduction of a new IP right for AI-generated inventions could undermine the current patent system by creating unnecessary conflict and confusion, the primary concern was that any unilateral change to this area by the UK could prejudice international trade in the long term. The government has therefore stated that it will 'advance international discussion so that inventions devised by AI are appropriately protected in the future'.

Final comments

Both UKIPO consultations on AI and IP have been important and welcome steps in the UK's journey to becoming a 'global AI superpower'. The decision to broaden the scope of the TDM exception will no doubt have a significant and beneficial impact on the quality of AI systems being developed in the UK.

At first blush it may appear that the UK government, by parking the other big issues posed by AI, has potentially missed an opportunity here to properly 'be at the forefront of [the AI] revolution'. However, the law can never be fully 'future-proofed' and the very fact that the UK is monitoring these ongoing issues surrounding AI-generated works and inventions is encouraging.
 
The issues associated with AI are cross discipline—from regulation and digital ethics, to technology, privacy, and IP. Our leading technology law group has the expertise and experience to help you achieve your strategic objectives when it comes to emerging technologies.

If you'd like to discuss how to better protect or monetise your content, or to make use of TDM to develop AI in a lawful way, please contact Chris Eastham and Marissa Beatty.


[1] In contrast, Article 4 of the EU's Copyright Directive does include a TDM exception opt out provision for rights holders.

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