In July 2023, the House of Commons Culture, Media and Sport Committee published a report focusing, first, on the impact of the growth of AI on copyright-protected works and, second, on the applications of creative technology, such as AR, VR and digital and AI-generated art, using case studies.

With respect to the impact of AI, the report focuses on the current exception to copyright infringement under UK law that permits text and data mining (“TDM”) (the copying and extraction of electronic information which is analysed for patterns, trends and correlations) for the “sole purpose of research for a non-commercial purpose.” Most types of AI, such as machine learning, require large amounts of data. Textual and other types of information form the raw materials used to create, test and improve certain types of AI. Such data can include works protected by copyright. In 2022, the UK Intellectual Property Office (“IPO”) stated that the Government planned to widen the scope of the TDM exception to allow TDM for any purpose (including a commercial purpose), a change to the law which it saw as necessary to facilitate the growth of AI. However, the copyright industries objected, pointing out the unfairness of this approach whereby AI companies could use copyright works they do not own to train AI and reap the commercial rewards without respecting or recognising the creators of the underlying works. In February 2023, the Government U-turned on its plans whilst accepting that there remains a need to clarify how AI providers and users can utilise copyright works and data to create AI.

The Committee’s report recommended that the Government confirms its plans to drop a broad text and data mining exemption to copyright. Instead, it should proactively support small AI developers in particular, who may find difficulties in acquiring licences, by reviewing how licensing schemes can be introduced for technical material and how mutually beneficial arrangements can be struck with rights management organisations and creative industries trade bodies. The Government should also support the continuance of a strong copyright regime in the UK, be clear that licences are required to use copyrighted content in AI, and act to ensure that creators are well rewarded under the copyright regime.

It also called on the Government to improve protections for creatives to prevent misuse of their likeness and performances by emerging technologies such as generative AI. At a minimum, this should involve bringing forward ratification of the Beijing Treaty on Audiovisual Performances.

In January 2024, the Government responded to the report. It agrees with the Committee that “reproduction of copyright-protected works by AI will infringe copyright unless permitted under licence or an exception” and confirmed that it will not proceed with the proposal to broaden the copyright exception for TDM. Instead, as announced in June 2023, it is committed to developing a code of practice on copyright and AI, with the involvement of both the AI and creative sectors, which aims to make licences for data mining more available. It intends to set out the outcomes of work on the code in early in 2024.

As for the Beijing Treaty, in its response, the Government has confirmed that it is committed to implementing and ratifying the Treaty (something it could not do as a member of the EU) and referred to its consultation on the implementation of the Treaty published on 14 September 2023. The Treaty provides additional IP rights in the performances by actors, musicians, dancers and other performers that are incorporated into films, TV programmes, music videos and other audiovisual recordings. These include an exclusive right to control the copying, commercial rental, distribution and making available online of their performances in audiovisual works. The Treaty also grants certain rights relating to broadcasting and communication to the public of fixed audiovisual performances, rights that do not exist currently under UK law. In its response to the report, the Government points out that the Treaty does not include specific provisions for performers to protect their rights against “deepfakes” that may be AI generated. The Treaty does introduce moral rights for performers to be identified as the performer and to prevent and object to derogatory treatment of their performance, but the Government states in the response that it will also explore the case for stronger protections.

For more information, click here.