AI- A New Exception to Copyright

30-06-2022


In a previous article here, Peter James looked at the issue of whether intellectual property law could keep pace with artificial intelligence.

Subsequently, the Government entered a consultation on AI and IP. Its conclusions have just been published.

The outcome of the consultation

While not closing the door on future reform, for the time being the Government has concluded that the proliferation of AI does not merit any change in the law regarding copyright in computer-generated works or the requirement for an inventor, in relation to a patent, to be a human being.

However, the Government is proposing a change in the law regarding text and data mining.

What is text or data mining?

This is a key element of AI. It is the access to and use of large datasets to teach AI algorithms to accurately recognise patterns and trends and to apply what it has learned to enable increasingly accurate predictions to be made.

In its response, the Government also recognised wider uses of text or data mining –in the fields of research, journalism, marketing and business analytics.

Up until now, a sticking point has been that much of the data has been protected by copyright or database right, making text or data mining difficult in the absence of a licence.

We already have a limited exception to copyright for text or data mining[1], but this only applies to non-commercial research, so is of little assistance to the commercial exploitation of AI.

So what is the planned reform?

This is to adopt a text and data mining exception for any purpose (whether commercial or non-commercial) without the rights holder having the opportunity to opt out. This will apply to both copyright and database rights.

At this stage, no draft legislation has been produced, but it will need to take into account a number of issues, including data protection where personal data is involved, as well as the integrity and security of data systems.

Given the opposition from rights holders, who were keen to adopt a licensing system and/or an opt-out, this is a bold move, but the Government has stated that it is part of its “ambition to make the UK a global centre for AI innovation” with the new exception ensuring “the UK’s copyright laws are amongst the most innovation-friendly in the world.”[2] Much will depend on precisely how the exception is worded and applied in practice.

[1] S 29A Copyright Designs and Patents Act 1988

[2] Para 62 Government Response to Consultation on AI and IP

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