Government Publishes Consultation on Copyright and AI
On Tuesday 17 December the government published their much-anticipated consultation on AI and copyright.
The consultation serves as part of the government’s push to increase growth in both the creative and AI sectors, which was outlined in their recent industrial strategy green paper, and sets out their plan for a copyright and AI framework that ‘…rewards human creativity, incentivises innovation and provides legal certainty …’.
The consultation looks at several different areas including copyright protection for works used in the training of AI models as well as the outputs of generative AI and digital replicas, also known as deepfakes. Within the document, the government state that their objectives for the AI sector and creative industries are to support rightsholder control, to support the development of ‘world leading AI models’ in the UK, and to promote greater trust and transparency between both sectors.
The preamble to the consultation, whilst acknowledging the strength of both the UK’s creative and AI sectors, explains that a disagreement exists between both groups as to the applicability of copyright in the training of AI. In addition, the consultation goes on to further explain that AI developers justify the current unlicensed copying of protected works for the training of their models by using existing copyright exceptions, the appropriate application of which is something strongly contested by rightsholders. The effect of this dispute, in addition to the lack of AI transparency, means that rightsholders have little control over their content and are not receiving compensation for the use of their works.
As to what it believes is a balanced solution, the government has proposed a preferred package of linked measures that includes the introduction of a copyright exception for text and data mining with a rights reservation as well as provisions to improve transparency of AI models. According to the consultation document, rightsholders would be able to reserve their rights under the new proposed regime through ‘effective and accessible’ machine readable formats and that those formats should be ‘standardised as far as possible.
The government argues that the status quo is untenable, that it would take too long to wait for the outcome of litigation, and that their proposal is the best option to support innovation, growth and human creativity. However, the government also note that, even if their preferred option is adopted, more detailed work will be needed for the measures proposed to effectively protect rightsholders’ content.
The consultation also considers the role of collective licensing with the government asking for views on good licensing practice. Recognising the convenience that collective licensing offers to both rightsholders and users of content, the government go on to highlight how such licensing could benefit small AI firms and new entrants.
The other TDM copyright exception policy options the government have asked for views on range from ‘do nothing’ to a broad copyright exception for text and data mining, as proposed by the previous government in 2022.
The consultation also asks for views on section 9(3) of the Copyright, Designs and Patents Act 1988 that provides copyright protection to computer generated works. It also includes questions on the labelling of generative AI outputs and digital replicas, commonly known as ‘deepfakes’.
The consultation documents can be found online and respondents have until 11:59pm on 25 February to submit their responses either though the online form or via email.
PLS CEO Tom West said:
"I welcome the government’s intention to find a mutually beneficial outcome and we wholeheartedly endorse their aim of supporting growth in both the creative and AI sectors. I am also encouraged that collective licensing is highlighted in the consultation and we will take the opportunity to provide government with detailed information on good licensing practice and the work we and our partners are currently undertaking to create voluntary collective licensing solutions for AI.
However, whilst PLS will constructively engage with the consultation and the government’s proposals, we remain of the view that the introduction of a new copyright exception has not been justified and that the continued development of a flexible and dynamic licensing market for AI offers the best path to sustainable growth in both sectors. We maintain that UK copyright law in relation to the training of commercial generative AI is clear, and that the limited capabilities of existing technological solutions means that a potential rights reservation exception would be unable to meet the basic requirement that rightsholders of all sizes must be able to have full control over the use of their content."
