Should AI-generated works be protected by copyright?
Availability of data to train AI
Next steps
Artificial intelligence (AI) technology is transforming many aspects of society and the UK government has ambitions to establish the United Kingdom as a world leader in AI. The UK Intellectual Property Office (UKIPO) recently held a consultation on the relationship between AI and IP rights. Two questions were asked around whether aspects of copyright law remain fit for purpose in an AI age.
Should AI-generated works be protected by copyright?
One of the questions addressed in the consultation was whether creative works generated solely by AI without any human intervention should be protected by copyright. Currently, an AI-generated work which is an original literary, dramatic, musical or artistic work is given a special form of copyright protection as a "computer-generated work", lasting 50 years from the date on which it was made. The United Kingdom is one of only a handful of countries that gives copyright protection to creative works generated solely by AI.
There are differing views over whether there should be copyright protection for computer-generated works. The availability of this protection certainly bolsters the UK government's AI ambitions. Start-ups, scale-ups and technology leaders are more incentivised to research, develop and deploy AI technology in an environment where the creative output is protected by copyright, giving the "person by whom the arrangements necessary for the creation of the work are undertaken" the exclusive right to exploit the work and an opportunity to recoup their investment costs.
However, some believe that copyright protection should reward only human creative endeavour. To support that view, they highlight the legal requirement that a computer-generated work must be original to attract copyright protection. Originality requires an assessment of the judgement, skill and personality put into the creation of the work, concepts which appear to have no relevance where a work has been created solely by machine. Proponents of this view also highlight the risks of devaluing human creativity, and of human creators being unfairly locked out of a body of creative forms, rapidly produced by AI, with a negative cost to promoting culture and the greater public good.
The UKIPO consultation sought views on how to balance these opposing interests and proposed three possible courses of action:
- to maintain the status quo;
- to remove copyright protection for computer-generated works altogether; or
- to adopt a middle ground by reducing the term of copyright protection for computer-generated works commensurate with encouraging the production of AI-generated works while reflecting the capacity of technology to generate works quickly and with less effort than that required of a human author. The UKIPO suggested a five-year term of protection may be appropriate.
The UKIPO acknowledged that it does not currently have the data it needs to understand the value of copyright protection for computer-generated works and the effect on AI investment decisions. Stakeholders have been asked to provide feedback on the perceived impact of each of the three options for change, and to identify the option most likely to strike the right balance between incentivising new AI-generated works and investment in AI without unreasonable cost to third parties, including users of these works and human creators.
Availability of data to train AI
The development and training of AI requires vast amounts of text and data to be copied and analysed, so that patterns, trends and other useful information can be identified (this is known as "text and data mining"). Access to much of that text and data will be prevented by the copyright or database right subsisting in it, leading to concerns that these IP rights could hinder AI development projects.
Section 29A of the Copyright Designs and Patents Act 1988, the primary piece of legislation on copyright law in the United Kingdom, sets out a text and data mining (TDM) exception to copyright. This provides that TDM will not infringe the copyright in a mined work provided the TDM is for non-commercial purposes and the AI developer has lawful access to the work (eg, via a licence, subscription or permission in terms and conditions).
An obvious limitation to this exception is the requirement that the TDM is for non-commercial purposes. Most AI technology is developed with a view to commercialisation. In addition, the exception only covers works protected by copyright and does not apply to database right. As a result of these limitations, most TDM will fall outside the exception. This means that AI developers must either mine only data that is not protected by copyright or database right (although whether a work has IP protection may be difficult to establish and such an approach will severely restrict the data available), or seek a licence to mine the work. Some works may be available to mine on generic open licence conditions, such as Creative Commons, although it may be necessary in some circumstances to negotiate an individual licence, creating difficulties around identifying, contacting and negotiating with the rights holder, and may incur a cost in the form of a licence fee.
The question of whether AI developers already have sufficient access to data to mine was addressed in the UKIPO's consultation. Specifically, the UKIPO asked whether changes should be made to the TDM exception.
The UKIPO proposed five options for change. One option is to maintain the status quo, with clarification being provided on what constitutes a "non-commercial" purpose. A second option is also to maintain the status quo but to take steps to improve the licensing environment for TDM, including the introduction of model licences and codes of practice.
Alternatively, the UKIPO proposes changes to the TDM exception itself by extending it to cover:
- scientific commercial research (although "scientific" is not defined in the consultation document);
- research of any nature for both non-commercial and commercial purposes, but giving rights holders the ability to opt-out some or all of their works; or
- any mining by anyone for both non-commercial and commercial purposes, this time with no opt-out for rights holders.
In each case, the exception would apply to works protected by copyright or database right.
The third of these extensions would create a highly favourable environment for AI developers but could lead to a situation where rights holders refuse to publish their data. This would be detrimental to future progress on AI development and undermine the very reason for extending the TDM exception in the first place.
The consultation lasted for 10 weeks and closed on 7 January 2022. The UKIPO is currently analysing the responses and the information obtained will inform the UKIPO's decision on the extent to which legislative change is needed. An announcement is expected within weeks.
For further information on this topic please contact Gill Dennis or Cerys Wyn Davies at Pinsent Masons by telephone (+44 20 7418 8250) or email ([email protected] or [email protected]). The Pinsent Masons website can be accessed at www.pinsentmasons.com.