The current position

Currently, the Copyright, Designs and Patents Act 1988 provides an exception to copyright for TDM, to the extent that the copying is carried out for non-commercial research purposes. This purpose limitation means that vast amounts of published material is currently reserved from data mining. Any enterprise wishing to use copyright protected materials for TDM for any commercial purpose must therefore seek a licence from the copyright owner.

A green light for AI

Under the government’s new proposals, the current purpose limitation would effectively be removed and the TDM exception would be extended to cover copying of materials for commercial purposes.  This would represent the removal of a significant legal obstacle for AI developers and businesses who rely on TDM to train and refine their models. This would also bring the UK closer in line with the approach adopted in the EU. However, it would undeniably represent a significant dilution of copyright owners’ rights. This is a concern which the government has tried to address by way of a proposed rights reservation system, under which copyright owners could effectively opt out of the new exception – thereby requiring any third party looking to use their material for TDM to obtain a licence. The effect of such a system would be to essentially shift the onus on to copyright owners to ensure that they validly opt out if they wish to avoid their works being used for TDM.

Unsurprisingly, this proposed solution has failed to pacify critics, many of whom see the proposed reforms as prioritising the advancement of AI and the profits of its developers at the expense of the creative industries. Accordingly, many from the creative industries have expressed discontent with the proposals in recent months. One such mark of protest came from over 1,000 UK artists in the music industry last month, with the release of ‘Is This What We Want’, a silent album consisting of recordings of empty studios, made to highlight the detrimental effects the proposed changes to copyright law would have on the UK music industry and the livelihood of its artists.

Looking forward

Given the proposed reforms come after failed attempts to establish a voluntary AI copyright code of practice, the government seeking to shift the default legal position on TDM represents a markedly more decisive move in favour of the innovation and advancement of AI systems in the UK. The move reflects the government’s firm commitment to making the UK a more enticing landscape for AI innovation – resolve that is apparent even in the tone of the IPO’s press releases regarding the consultation. It is therefore unclear if or to what extent any concerns raised by critics during the consultation would deter the government from pressing ahead with its proposals. However, in unapologetically prioritising AI as the perceived key to achieving economic growth, the government may find itself stifling another industry – with the UK’s music, film and television, artistic and other creative industries paying the price.

For any questions regarding how the proposed changes to copyright law may impact your business, please contact our Intellectual Property Team.