By Chelsea Chung, President of the King’s Commercial Awareness Society
After a public consultation held between October 2021 and January 2022 on potential reform of the Copyright Designs and Patents Act 1988 (CDPA), the UK government has recently decided to cancel plans to expand the scope of the text and data mining (TDM) exception detailed in section 29A of the CDPA.
Legal Background
As in many other jurisdictions, the CDPA provides limited fair use provisions as exceptions to copyright infringement. Section 29A entails an exception for acts of TDM of copyrighted works and databases for non-commercial purposes. The prerequisite is that the user has acquired lawful access to the work beforehand from, for example, a license, subscription, or permission in the terms and conditions.
In 2022, the UK government expressed a strong intention to expand the scope of section 29A to allow TDM for any purpose, including commercial uses. Moreover, right-holders would not be able to opt-out or contract out of this exception, further diminishing their control and autonomy over the use of their work.
The government explained that this move aimed to elevate the UK’s position in the innovation economy, effectively making it a global AI and innovation hub. This is because AI-generated works often draw on copyrighted information (consider the latest boom of ChatGPT), meaning that developing such works would need protection under fair use provisions to avoid copyright infringement. It is important to note that AI-generated works are often for commercial uses and have independent economic significance. However, as only works for non-commercial or research purposes are exempted under section 29A, they are most likely not exempt by the provision and instead require licensing from right-owners to be lawful. This is very difficult to achieve, considering that in most situations, the extraction of information happens across a wide range of sources where thousands of right-owners are involved.
Why did this happen?
Why was the plan canceled despite all those benefits? The government’s proposal quickly attracted overwhelming criticism and opposition, mostly from those who demand protection for artist integrity and originality. In response to the TDM proposal, a stakeholders’ report from the Design and Artists Copyright Society (DACS) suggests that artists greatly value the ability to license their work, as it provides autonomy over the use of their work and the resulting remuneration. The House of Lords’ Communications and Digital Committee also published a report citing strong opposition from representatives of the country’s music, publishing, and academic sectors. For example, UK Music was “deeply concerned” about the introduction of a “blanket exemption” for TDM, which “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”.
The parliamentary and right-holder opposition was echoed by the copyright infringement claim recently brought by Getty images. This alleged that Stability AI had been involved in the unlawful copying and processing of copyright images.
What does this mean?
Although the government’s decision to put a stop to the legislative expansion is commendable in light of the articulated concerns regarding the potential negative impacts on the creative industry, it is also arguable that retaining the current exception could hinder the UK’s ambition of leading the global innovation economy.
The UK’s TDM approach is ultimately on the restrictive side of the spectrum compared to other major countries. Notably, the US approach is arguably more favourable to TDM practices, with section 107 of the US Copyrights Act providing a flexible fair use doctrine compared to the UK’s closed system of exceptions. The court considers the number of factors to determine whether a certain use of a copyrighted work is fair, which means that litigations are decided on a less rigid, case-by-case basis. Other jurisdictions, such as the US, might therefore appear more facilitative of further AI developments, which could incentivise UK tech companies and start-ups to move the focus of their business across the Atlantic. This could put the UK at a disadvantage in the tech sector compared to its counterparts amongst the world’s leading countries, which would be problematic considering that the UK is still trying to recover from its gloomy economic outlook, as evidenced by it possibly being the only G7 economy in recession this year.