Entertainment and Media Guide to AI

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Unlike the EU, the UK did not transpose the Directive on Copyright in the Digital Single Market, adopted in 2019 (Copyright Directive), and may find itself unable to legislate on TDM for some time as a result of the charged atmosphere that 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, but with strict copyright rules allowing very limited scope for data extraction without a license. That is, of course, unless the UK, now free from its EU shackles, decides to reinvent the meaning of its “fair dealings” exception…

The UK was among the first countries to introduce a TDM exception, in 2014. This remains in force in section 29A of the Copyright, Designs and Patents Act 1988. It permits the making of a copy of a work in order to carry out “computational analysis,” but is limited to the sole purpose of research for a non-commercial purpose. Nonetheless, it is worth noting that the exception does not distinguish between public and private research, and the exception is mandatory and cannot be limited by contract.

In 2021, the UK published its National AI Strategy, 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 and 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, without a license, of non-protected facts and data from lawfully accessed content protected by copyright.

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,” because the proposed exception would prevent rights holders from licensing or receiving payment for the use of their data and content. The government was quick to listen, and in February 2023, 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, paradoxically, with one of the strictest legal frameworks for AI across the globe.

Key takeaways
  • The UK was among the first countries to introduce a TDM exception, but it is limited to the sole purpose of research for a non-commercial purpose
  • The UK government has indicated there are no further plans to introduce copyright exemptions in connection with AI