Finding Balance: Westminster in 2023
Events in Westminster in 2022 appeared to exhaust all the usual political cliches. A week was indeed a long time in politics and the atmosphere in parliament was seemingly febrile for most, if not all, of the year. The UK started the year with Boris Johnson as prime minister and finished with Rishi Sunak at Number 10, with a short but highly eventful and consequential stint as PM for Liz Truss. With the death of Queen Elizabeth the Second and a new monarch on the throne, as well as the Russian invasion of Ukraine and its global effects, it was a year that will comfortably fill whole chapters of future history books.
2023 continued what has lately become common with the welcoming of another new minister responsible for intellectual property. However, current incumbent Viscount Camrose was given the new ministerial position of Minister for AI and Intellectual Property, rightly highlighting IP and its role in future technological innovation.
The government’s ambition to improve UK innovation and to better reap its economic rewards was the main reason for the wider ‘Machinery of Government’ reorganisation that took place in February, that saw the creation of the Department for Science, Innovation and Technology (DSIT), who, with secretary of state Michelle Donelan MP at the helm, is now responsible for digital policy, driving UK innovation, and is the new departmental home for the IPO. With the changes in place, the long-awaited AI White Paper was also published in March that set out how the government looked to regulate artificial intelligence – the technology of the moment and key to the government’s future innovation ambitions. IP was given a passing mention in the White Paper, much to the disappointment of the creative industries.
The reason why copyright was barely mentioned in the White Paper was because of an earlier announcement in June 2022 of the government’s intention to introduce a broad new copyright exception for text and data mining, which was met with unanimous disapproval from publishing and across a united creative industries. In February 2023, at a Westminster Hall debate called by Sarah Olney MP, the Liberal Democrat Spokesperson for Business, Energy and Industrial Strategy, the then government minister responsible for IP, George Freeman MP, announced that the government had listened to the concerns raised by rightsholders and was not to proceed with the exception.
The announcement was cautiously welcomed by the creative industries, but the issues previously highlighted issues surrounding the relationship between copyright and AI remained unresolved. On 15 March, in response to Sir Patrick Vallance’s Pro-innovation Regulation of Technologies Review, the government confirmed that it would work ‘at pace’ to clarify the relation between the application of IP law and the AI sector and that the Intellectual Property Office (IPO), in consultation with the tech and creative sector, would publish a code of practice to provide guidance to AI firms on how to access and use copyrighted works.
The IPO convened a working group made up of representatives from across the creative industries and several AI firms to take part in a series of roundtable meetings to discuss and agree to the contents of the proposed voluntary code of conduct. The first roundtable took place on 6 June with meetings held across the summer to 12 October. Despite the number of meetings and the subjects covered, from licensing to labelling of AI-generated content, as of writing, no final code of practice has been agreed or published. With the government clear that legislation is an option should no code be agreed, and despite their wish to ‘find a balance’ between the interests of rightsholders and AI firms, the threat of a further weakening of copyright in some form sadly remains through to 2024.
Elsewhere in Westminster, parliament’s select committees added their support for copyright and rightsholders. In August, the Culture, Media, and Sport Select Committee’s report ‘Connected tech: AI and creative technology’ recommended that “The Government should support the continuance of a strong copyright regime in the UK and be clear that licences are required to use copyrighted content in AI”. Also, in September, the newly formed Science, Innovation and Technology Select Committee’s report ‘The governance of artificial intelligence: interim report’ recommended that “policy must establish the rights of the originators of this content, and these rights must be enforced”.
The House of Lords Communications and Digital Committee is currently conducting an inquiry into large language models, which PLS submitted written evidence to, with Dan Conway, Chief Executive Officer at the Publishers Association and minister, Viscount Camrose, both providing evidence in person. The Committee’s final report is expected to be published in the new year.
Away from AI, on 16 October, with the Retained EU Law (Revocation and Reform) Act receiving Royal Assent, the IPO published The Intellectual Property (Exhaustion of Rights) (Amendment) Regulations 2023. The regulations amended law so that the interim ‘UK+’ IP exhaustion regime continued past 31 December 2023, when the REUL Act repealed section 4 of the Withdrawal Act. However, the long-awaited decision by the government on the permanent future of the UK IP exhaustion regime has yet to be made and remains the subject of speculation.
What does 2024 have in store? It will be a huge year for elections, with votes in the US, India, as well as local elections, and highly likely, a general election in the UK. As to who will form the next administration in the UK, for some time polling has shown Sir Keir Starmer’s Labour Party comfortably ahead and on course to gain a majority. Whilst Labour has yet to make many firm manifesto commitments, and whilst copyright is unlikely to be an issue that will be in the foremost of voter’s minds at the next election, in May, Labourlist published a leaked draft Labour policy programme for possible inclusion in the Party’s manifesto at the next general election that included a proposal to “ensure our intellectual property system is fit for the digital age”. However, if events over the past few years have taught us anything, it would be unwise to predict the outcome of the next election with total confidence nor take for granted the UK’s ‘gold standard’ copyright regime.