UK Government responds on AI and IP rights to allow text and data mining of copyright works in all circumstances

July 01, 2022

The UK Government has published its response to the consultation on AI and IP rights (our recent blog post sets out a detailed overview of the questions raised by the consultation), having held several roundtables and received detailed written responses from participants across industries.

Outcome of the consultation

The consultation asked for preferred positions on three areas:

  1. Copyright protection for computer-generated works without a human author.
  2. Licensing or exceptions to copyright for text and data mining.
  3. Patent protection for AI-devised inventions.

Following the conclusion of the consultation, the Government does not intend to change the law surrounding copyright protection for computer-generated works or patent protection of AI creations. For both areas the Government determined that:

  • AI is not yet advanced enough to warrant changes that would inevitably bring uncertainty.
  • Conferring patent protection for AI-generated inventions would have to follow an initial change at an international level in order to ensure that such rights are also protected in other jurisdictions and key markets.

Conversely, the Government intends to expand the text and data mining exception (described in more detail below) to all purposes, including commercial. The proposed approach is similar to the Singapore exceptions to copyright protection (read our post on it here).

Text and Data Mining

Text and data mining (TDM):

  • Broadly refers to computer-based data analysis. In this process, material is copied from a source, then the relevant data is extracted and analysed to identify patterns and trends.
  • Only involves copyright-protected data where the data is pulled from “works” (literary, dramatic, musical, artistic etc., within the meaning of the Copyright, Designs and Patents Act 1988 (CDPA)). Facts and information are not themselves subject to copyright protection, but are often contained within a copyright work. Where this is the case, the CDPA currently permits copying for TDM only for non-commercial research purposes.

Where information is not subject to copyright protection or database rights available under EU law, the data owner is permitted to impose contractual restrictions (including via website terms of use) to prevent webscraping (as established in the CJEU decision in Ryanair Ltd v PR Aviation BV, Case C-30/14).

The UK Government’s proposed changes to the CDPA would extend the existing copyright exception for TDM to commercial purposes in order to improve the development of AI and to make the UK more attractive to data mining firms.

In support of the proposed change, the Government noted that some users had been priced out of licensing when research projects have limited funding or struggled with having to obtain licences from numerous individual rights holders.

The proposed change was resisted by the rights holders in the creative industry whose income is based around licensing of their works – photographers, musicians and publishers. However, the Government preferred to support data users and the development of AI, noting that datasets are present in all types of work.

Consequences of the proposed TDM change

Rights holders within all industries will not be able to charge for licences for TDM or to contract/opt out of the exception. It is likely that the terms of use of a website that prevent TDM will be considered “contracting out of the exception” and therefore prohibited. If such prohibition of contracting out were to be effective, it would contradict the approach for non-copyright works established in the Ryanair case, mentioned above.

However, rights holders will still be protected by the requirement for lawful access. For example, they will be able to choose a platform on which their works are available and charge for access to such platform, including on a subscription basis. It seems, therefore, that data protected by copyright might simply move behind paywalls. Crucially, rights holders will be able to ensure integrity and security of their data.

Other issues to consider

The Government stated that data protection and data ethics concerns were out of scope for this consultation, noting that the regulation of data standards was similarly outside the scope of the consultation.

However, considering moves towards interoperability of data in the EU as part of the EU Digital Strategy, it is likely that there will be separate developments to address the data standards.