IP Cases & Articles

UKIPO digs into the use of text and data mining for AI

Earlier in the year we reported on the UK Intellectual Property Office’s (UKIPO) decision to scrap the planned extension of the text and data mining exception for copyright and the sui generis database right to cover “any purpose”. This extension would have covered, most notably, commercial purposes, and would therefore have been of particular interest to artificial intelligence (AI) companies in the UK, which may rely on text and data mining for their AI techniques.

Pro-innovation Regulation of Technologies Review

Since our last report, Sir Patrick Vallance, then UK Government Chief Scientific Adviser, presented a report to the government as part of the Pro-Innovation Regulation of Technologies Review. Among other topics, Sir Vallance provided recommendations relating to generative AI and the relationship between generative AI and intellectual property.

He discussed how there appears to be a lack of regulatory clarity in the UKIPO’s reforms relating to text and data mining rules in the UK, and in particular for AI firms deploying text and data mining techniques to generate new content. Notably, he stated:

“If the government’s aim is to promote an innovative AI industry in the UK, it should enable mining of available data, text, and images (the input) and utilise existing protections of copyright and IP law on the output of AI. There is an urgent need to prioritise practical solutions to the barriers faced by AI firms in accessing copyright and database materials. The government should work with the AI and creative industries to develop ways to enable TDM for any purpose, and to include the use of publicly available content including that covered by intellectual property as an input to TDM (including databases). The opportunity here is to focus on clarifying a simple process concerning the input to AI models; IP rights and their enforcement would apply to the output of any product. We also recommend a code of practice and a requirement for altered images to be labelled as generated or assisted by AI.”

He concluded by calling on the UKIPO to provide clearer guidance to AI firms as to their legal responsibilities, to coordinate intelligence on systematic copyright infringement by AI, and to encourage development of AI tools to help enforce IP rights.

The government's response

In response to Sir Vallance’s recommendation, relating to generative AI, the government has confirmed that it “will act at pace to provide clarity in relation to the application of intellectual property law to the AI sector”.

As part of this, the UKIPO will produce a code of practice which will: “provide guidance to support AI firms to access copyrighted work as an input to their models, whilst ensuring there are protections (e.g. labelling) on generated output to support right holders of copyrighted work.”

The response further states: “To inform the code of practice, the IPO will convene a group of AI firms and rights holders to identify barriers faced by users of data mining techniques when accessing copyright materials. An AI firm which commits to the code of practice can expect to be able to have a reasonable licence offered by a rights holder in return.”

The government has also made it clear that cooperation between the AI and creative sectors will be important, but suggest that legislation could be used if agreement cannot be reached: “The government believes that the involvement of both the AI and creative sectors will ensure the creation of a balanced and pragmatic code of practice that will enable both sectors to grow in partnership. However, this may be followed up with legislation, if the code of practice is not adopted or agreement is not reached”

The government suggests that the code of practice should be available “by the summer”.

The UKIPO's recent guidance

On 29 June 2023, the UKIPO published its summary of the government’s ongoing programme of work to develop a code of practice on copyright and AI.

The summary states: “The government is now working with users and rights holders on a code of practice on copyright and AI. The code of practice aims to make licences for data mining more available. It will help to overcome barriers that AI firms and users currently face, and ensure there are protections for rights holders. This ensures that the UK copyright framework promotes and rewards investment in creativity. It also supports the ambition for the UK to be a world leader in research and AI innovation.”

Work is currently ongoing with industry representatives from the technology, creative and research sectors to help develop the code of practice. We therefore hope to have an update on this soon.

In short

Recent progress will be welcome news to AI companies in the UK looking for greater clarity on their legal position, and also rights holders looking to ensure their works are suitably protected.

We will report back on this subject when there are further updates from the UKIPO, which we hope to see in the near future. In the meantime, should you have any queries regarding text and data mining or AI inventions please contact your usual D Young and Co representative.

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