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Out-Law Analysis | 21 Feb 2022 | 3:57 pm | 5 min. read
The UK government is currently deliberating over the extent to which an important exception to copyright laws should be extended, if at all, to support business in developing artificial intelligence (AI) systems.
The development and training of AI technology requires large swathes of data to be analysed and copied, but access to much of that data is often prohibited by the copyright or database right subsisting in it. This has raised concerns that this intellectual property (IP) protection could hinder AI development projects and impact on the UK government’s ambitions to establish the UK as a world leader in AI.
The UK Intellectual Property Office’s recent consultation on AI and intellectual property addressed this issue.
Cerys Wyn Davies
Any of the options chosen will have significant implications for AI developers and rights holders
Specifically, the UKIPO asked whether the existing text and data mining exception in UK copyright law is adequate to give AI developers access to the data they need. An answer to that question is anticipated from the government within weeks.
Text and data mining (TDM) is the use of automated computational techniques to analyse and copy large amounts of information to identify patterns, trends, and other useful information. TDM may be used to develop and train AI.
Section 29A of the Copyright Designs and Patents Act 1988 sets out a text and data mining exception to copyright. This provides that TDM will not infringe the copyright in a copyright protected work provided an AI developer has lawful access to the work – for example, via a subscription or permission in terms and conditions – and the TDM is for the purposes of non-commercial research. Contract terms that stop developers relying on the TDM exception are unenforceable and the law also requires acknowledgement of both the works mined and the rights holders unless this is impractical.
The TDM exception has significant limitations, not least the requirement that the TDM must be for non-commercial purposes. This is problematic in the context of AI, as most transformational AI is developed with a view to future commercialisation. In addition, the exception only applies to works protected by copyright and does not extend to database rights.
This means that AI developers undertaking TDM for commercial purposes must limit TDM to works not protected by copyright or database right. This is likely to severely reduce the data available, and mining of the text may in any event be prevented by other contractual or legal restrictions, such as data protection requirements. Otherwise, AI developers will need to seek a licence from the rights holders.
Sometimes a licence may be freely and easily available, for example where the rights holders have chosen to use generic open licence conditions such as Creative Commons or Open Government Licence or made their data available on a subscription basis with the uses to which the data can be put set out clearly in the related terms and conditions. However, in some situations individually negotiated licences may be needed. This can create difficulties where the rights holders cannot be identified or successfully contacted, and a licence fee is likely to be payable.
In its consultation, the UKIPO asked for views on whether the TDM exception should be extended. It set out five potential options. The first is to maintain the status quo, although clarification would be provided on what constitutes a non-commercial purpose. The UKIPO said that choosing this option would be justified if the current exception proves not to be an impediment to accessing material for TDM, in particular when training AI systems.
The second option would also involve no change to the existing TDM exception but would encourage in parallel an environment of best practice licensing for TDM through education and the introduction of model licences or codes of practice.
In its discussion of this option, the UKIPO highlighted the benefits of licensing in the TDM space, including the greater legal certainty around the mining permitted, the ability of rights holders to benefit from licensing income and the possible encouragement to some rights holders to provide value-added data-mining products. However, the UKIPO also acknowledged the corresponding licensing costs to AI developers as well as the transaction costs involved in locating rights holders and negotiating the licence agreement.
Senior Practice Development Lawyer
This fifth option is the most radical of the options available, as it would create an environment highly favourable to AI developers and significantly less favourable for rights holders
As a third option, the UKIPO proposed extending the TDM exception to cover commercial research and TDM of databases. However, only ‘scientific’ research would be covered by the new exception, although a definition of scientific for this purpose was not provided in the consultation document. AI developers would still be required to have lawful access to the data they want to mine, for example, via a subscription model.
The fourth option identified by the UKIPO is to extend the existing TDM exception to cover research of any nature – not merely ‘scientific’ research – for both non-commercial and commercial purposes. The extended exception would cover both copyright works and those protected by database rights. Users would still need to obtain lawful access to the works. However, crucially, rights holders would be able to opt-out individual works, sets of works or all their works that they did not want to be mined. The UKIPO envisages this working in practice via machine-readable opt-out technology.
The primary advantages of this option, according to the UKIPO, is that it would alleviate the high costs associated with mining works where licences are difficult to agree, while preserving the ability of rights holders to license their works instead if they wish.
The final option identified by the UKIPO is to extend the existing TDM exception to cover any use of copyright or database right protected works by anyone for both non-commercial and commercial purposes. Lawful access to the works would still be required, meaning licences and subscriptions would still have a part to play, but rights holders would not be able to opt-out any of their works.
The UKIPO recognises that this fifth option is the most radical of the options available, as it would create an environment highly favourable to AI developers and significantly less favourable for rights holders. If this option is pursued, it could lead rights holders to decide not to publish their data at all. This would negatively impact on AI development and deployment and undermine the very reason for extending the exception in the first place.
The UKIPO asked stakeholders for their views in a bid to establish the perceived value of the current TDM exception and the anticipated implications of each of the five proposed future regimes. It was particularly keen to hear about the costs, benefits, and workability of the current TDM licensing system.
The consultation lasted for 10 weeks and closed on 7 January 2022. The UKIPO is currently analysing the responses. The information obtained will inform the UKIPO’s decision on the extent to which legislative change is needed and we expect an announcement within weeks. Any of the options chosen will have significant implications for AI developers and rights holders.
In the same consultation, the UKIPO sought views on whether creative works generated solely by AI without any human intervention should be protected by copyright. Separately, the UKIPO is currently consulting on the extent to which creative works generated by AI should obtain design protection.
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