17 July 2023

On 29 June 2023 the UK Government announced that work had commenced on the creation of a Code of Practice on copyright and AI. This follows the publication of the Vallance Report, prepared by Sir Patrick Vallance (former UK Chief Scientific Officer), which included the following recommendations:

1.      The UK government should work with regulators to develop a multi-regulator sandbox for AI, which should be in operation within the next six months.
 
2.      The UK government should announce a clear policy position on the relationship between intellectual property law and generative AI to provide confidence to innovators and investors.
 
3.      The UK government should facilitate greater industry access to public data, and prioritise wider data sharing and linkage across the public sector, to help deliver the government’s public services transformation programme.
 
4.      The Information Commissioner’s Office (ICO) should update its guidance to clarify when an organisation is a controller, joint controller or processor for processing activities relating to AI as a service (AIaaS). This should include guidance on when providers can reuse personal information for improving their models.
 
5.      The UK government should avoid regulating emerging digital technologies too early, to avoid the risk of stifling innovation. 

What is copyright and why is it so important in the emergence of AI?

Copyright is an intellectual property right regulated by the Copyright, Designs and Patents Act 1988. Unlike many other forms of intellectual property, there is no need to register copyright to obtain protection. Ownership of the right generally vests automatically in the original creator and, like other rights, it can be bought, sold, licenced, or generally commercialised for profit.

Copyright arises, most commonly, in creative works (literary works, photographs, video, audio etc) and is most commonly seen in books, music, and film. Works subject to copyright can be identified with the © symbol along with the author’s name and year of creation.

Copyright can also arise in certain pieces of code (where unique) and databases. Without protection the code and/or database may simply fall to into the category of being, usable by all. This removes any commercialisation prospects for the creator.

Copyright material in AI and data mining

Vast amounts of code and database material are often used to train AI systems. Generative AI then mines similar content to provide a solution to the tasks it carries out. This mining can include unauthorised access to copyright material by the AI algorithm through learning and, in some cases, recording/publishing the copyright material in logs or relying on the code in the future in order to continue learning.

As an unregistered right, it can be difficult to ascertain what works available online are still protected by copyright and who the owner may be. The risk of infringing copyright is very real for any individuals re-using material found online, However, this problem is magnified by generative AI which creates material specifically by using existing content. The “black box” effect of AI also makes it very difficult for any human oversight to identify what materials AI has used to create content.

An easy copyright licence that works for all

One of the main elements of the proposed Code of Practice is the inclusion of “licences” that are simple to create, easy to understand, and basic in nature to allow equality of access and to strike a balance between fostering innovation and protecting IP rights.

For example, a licence could be granted, in exchange for a fee, to allow generative AI to access code to further learning. Alternatively where AI accesses material subject to copyright without authorisation, a retrospective agreement could be entered into to allow the creator of the copyright work to be fairly compensated for the use of their IP while not unduly placing restrictions on rapid technological innovations.

Current Progress

The UK Intellectual Property Office  has established a working group which will consider the Vallance report in greater detail and receive evidence/submissions to aid in the creation of the Code of Practice. The group, includes representatives from the creative, technology, and research sectors to ensure fair protection for rights holders without restricting the innovation boom the AI sector is currently experiencing. The focus of the group is to:

·        identify creator concerns relating to the use of copyright works, performances and databases by AI systems and users; and

·        identify any barriers to the access to copyright works, performances and databases by AI systems and users, including for the purposes of text and data mining.

The voluntary Code of Practice will set out commitments and expectations in relation to AI use of protected material and the right holders who own protected material. While the adoption of the Code is intended to be voluntary, the government has indicated that if the Code of Practice is not adopted, or agreement is not reached, legislation could be considered.

If you would like to know more about how copyright may affect your work, please contact the BTO Intellectual Property team on 0131 222 2939 or lyr@bto.co.uk.

Lauren McFarlane, Senior Solicitor: lmf@bto.co.uk / 0131 222 2939

Jamie Stewart, Trainee Solicitor: jgs@bto.co.uk / 0131 222 2939