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UK text and data mining copyright exception proposals set to be watered down

Plans to expand the scope of the text and data mining (TDM) exception that exists in copyright law remain under consideration in the UK despite strong opposition to the proposals and predictions from the minister responsible for creative industries policy that they will not be implemented, Out-Law can confirm.

According to Cerys Wyn Davies, an intellectual property law expert at Pinsent Masons, however, it is likely that proposed reforms to the TDM exception detailed last year will be watered down.

The Copyright, Designs and Patents Act 1998 provides limited exceptions to copyright infringement. One exception allows text and data mining (TDM) of copyrighted works for non-commercial purposes, provided that the user has lawful access to the work via, for example, a licence, subscription or permission in terms and conditions. Last year, the UK government confirmed its intention to expand the scope of that exception to enable TDM of works protected by copyright and database rights for any purpose after considering how it could support artificial intelligence (AI) and wider innovation in the UK.

However, the proposals have been subject to parliamentary scrutiny and drawn criticism from rights holder groups.

As part of a recent inquiry that looked at actions the government and industry could take to help the UK’s creative industries thrive over the next decade, the House of Lords’ Communications and Digital Committee considered the TDM exception proposals. Its report, published recently at the end of its inquiry, cited opposition to the proposals given in evidence to the committee. This included evidence from representatives from the UK’s music and publishing sectors and academics.

UK Music said it is “deeply concerned” about the proposals and that the introduction of a “blanket exemption” for TDM “would allow AI music to be created using copyright content that those controlling the AI do not own, with no compensation to the artists and rights holders whose investment created it”.

Dan Conway, chief executive of the Publishers Association, described the government’s proposals as “a sledgehammer to crack a nut”. He said reforms targeted at improving copyright licensing would be a better option and that the government’s proposals “would allow any … businesses of any size, located anywhere in the world, to access all my members’ data for free for the purposes of text and data mining”.

Dr Andres Guadamuz, reader in intellectual property law at the University of Sussex and chief editor of the Journal of World Intellectual Property, highlighted that the UK proposals go further than the changes made to the TDM exception in EU copyright law in 2019, which – unlike the UK proposals – enable rights holders to opt their works out from inclusion in datasets that are otherwise subject to TDM for commercial purposes.

The UK’s digital minister Julia Lopez also gave evidence to the committee. Referring to the TDM proposals, she said: “This committee and DCMS are very aware that IP is the lifeblood of many creative industry businesses, so we are not convinced of the value of this piece of work. I am fairly confident, in so far as I can say publicly, that this is not going to proceed.”

In its report, the Communications and Digital Committee described the plans to expand the TDM exception as “misguided”. It said they do not account sufficiently for “the potential harm to the creative industries” and added that, while developing AI is “important”, it should not be “pursued at all costs”.

However, a spokesperson for the IPO told Out-Law: “We are continuing to engage with stakeholders on implementation options for the text and data mining proposal, taking into account the feedback and evidence received during 2022, and will provide further updates in due course.”

Publication of the committee’s report comes at a time when the issue of IP rights and AI development has hit the headlines. Getty Images said last week that it has lodged legal proceedings at the High Court in London alleging copyright infringement by AI developer Stability AI.

Getty has accused Stability AI of having “unlawfully copied and processed millions of images protected by copyright and the associated metadata owned or represented by Getty Images absent a license to benefit Stability AI’s commercial interests and to the detriment of the content creator”. In response, Stability AI said the company takes the matter seriously but that it had, at that stage, yet to receive the formal legal complaint and would “comment appropriately” only once the documents were served.

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