The UK’s AI strategy
The UK published its National AI Strategy in September 2021, based on three key pillars: “(i) investing in the long-term needs of the AI ecosystem; (ii) ensuring AI benefits all sectors and regions; and (iii) governing AI effectively.” Part of this strategy involved launching a consultation on copyright, and specifically the extent to which measures should be implemented to facilitate the use of “copyright protected material in AI development.”
Shortly thereafter, the Intellectual Property Office (IPO) launched its AI & Copyright consultation, which included a number of questions focusing on “licensing or exceptions to copyright for text and data mining, which is often significant in AI use and development.” The outcome of the consultation was published by the IPO in June 2022 and made headlines for the strong signal it sent to the AI sector by championing the creation of a copyright exception to permit the extraction of non-protected facts and data from lawfully accessed content protected by copyright, without a license.
But the UK creative sector had other ideas. Publishers, visual artists and the music sector voiced their concerns that they may need to “exit the UK market or apply paywalls where access to content is currently free"1 because the proposed exception would prevent rightsholders from licensing or receiving payment for the use of their data and content. The government was quick to listen and earlier this month, it confirmed that it “will not be proceeding with the proposals.”
No further plan was announced, and no mention was made of exploring alternative options, leaving the UK isolated on the AI geopolitical map and, oddly, with one of the strictest legal frameworks for AI across the globe.
Text and data mining
In the words of the IPO, “text and data mining (TDM) is the use of automated computational techniques to analyse large amounts of information to identify patterns, trends and other useful information. TDM may be used to develop and train AI and has a range of other uses including enabling research. This includes the analysis of medical and scientific data, business intelligence, and data analytics. TDM automates and accelerates what would traditionally be done by eye – reading a document, making notes, and understanding relationships and trends.”
Because TDM usually requires copying of the material to be analyzed, mining content protected by copyright generally requires a license or relies on a copyright exception.
The container vs. content debate
Copyright law protects original expressions; it does not protect ideas, concepts, facts, knowledge or mere data. Yet more often than not, data and facts are embedded within an original text, song, image, film, etc. Whether or not the law should facilitate access to underlying data captured within protected works is a question that has divided, and continues to divide opinions.
The tech industry and the AI sector have long argued that the content of a protected work is not protected by copyright; only the form – the container of the work – is. Yet, because there is currently no viable form of using content without also using the container, questions regarding the need to create a dedicated copyright exemption or exception have arisen. The affirmation that non-protected mere facts and data should not be captured by copyright has been at the center of the AI sector’s campaign in favor of a broad TDM exception to copyright in the UK.
On the other hand, copyright holders are unsurprisingly adamant that the law cannot deprive them of their ability to control or monetize their works, be it for TDM or other purposes. The recent launch of AI-powered solutions capable of producing photos, paintings and music at the push of a button has only contributed to reinforce the defiance of the creative sector against tech businesses, perceived as deriving unreasonable value from TDM of copyright protected content, and amidst a flurry of lawsuits regarding the legality of TDM, including by Getty Images in front of the High Court of Justice in London, the debate seems to intensify daily.
Geopolitics of AI
Copyright is a territorial beast and not all countries are equal in how they have decided to approach the TDM debate.
The U.S. apprehends TDM through its doctrine of “fair use,” that permits limited use of copyright protected material without having to first acquire permission from the copyright holder – in particular where the contemplated use is deemed “transformative”. Japan enjoys a flexible copyright exception for “non-enjoyment” purposes. Other countries, such as Singapore, South Korea, Malaysia, Israel and Taiwan, have adopted similar rules across the globe, with the firm intention of removing uncertainties for their tech industries and positioning themselves in the AI race, unencumbered.
The EU followed suit, albeit with a much shallower version of the exception as far as businesses are concerned. The Directive on Copyright in the Digital Single Market, adopted in 2019 (the Copyright Directive) introduced two mandatory exceptions under EU copyright law: (i) one for research and cultural organizations to conduct research and (ii) another one available to any type of beneficiaries for any type of use, but with a significant caveat – it may be overridden by “opt-out,” a concession to rightsholders introduced during the very last stage of the Copyright Directive’s adoption process and which is fraught with practical difficulties.
The UK did not transpose the Copyright Directive and may find itself unable to legislate on TDM for some time as a result of the charged atmosphere which seems to have permeated this issue, at home and elsewhere. Meanwhile, the UK could find itself in a Catch-22 situation, with a desire to encourage its AI sector, yet strict copyright rules with very limited scope for data extraction without a licence. That is, of course, unless the UK, now free from its EU shackles, decides to reinvent the meaning of its “fair dealings” exception…
- PCF TDM Letter as of 08/08/22
Client Alert 2023-061