UK IPO proposes a new copyright exception for text and data mining

On the 28 June, the UK Intellectual Property Office (IPO) issued its response to its previous consultation on Artificial Intelligence (AI) and Intellectual Property (IP), which. The consultation ran between October 2021 and January 2022 and sought evidence and views on how copyright and patent law can best support the development and deployment of AI technology.

The consultation focused on three main areas:

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

No changes to the law in respect of copyright protection for computer-generated works and patent protection for AI-devised inventions

CGWs are currently protected under UK copyright law for 50 years. The question posed by the consultation was whether they should continue to be protected, and if so, in what manner. In its recent response, the UK IPO noted that there is currently no evidence that protection for CGWs is harmful and, as the use of AI is still in its early stages, a proper evaluation of the options is not yet possible meaning that any legislative changes could have unintended consequences. For these reasons, the Government currently plans no changes to the law on this point. However, the law will be kept under review and could be amended in the future if evidence supports it.

As with CGWs, the consultation asked whether AI-devised inventions should be protected under UK patent law, and if so, what form this protection should take. Currently, a patent may be granted for an AI-assisted invention under the UK Patents Act 1977. The consultation had not identified evidence that this current level of protection was inappropriate. Furthermore, in line with the views expressed by most of the respondents, the Government noted that any change to current patent legislation could risk causing UK patent laws to diverge from international norms of inventorship and thus prejudice international patent filings in markets that are important for UK interests. This would be counterproductive to the original aim of the consultation. Any such future change should be made at an international level, and the UK will work towards advancing international discussion on the subject.

A new copyright exception for TDM

TDM refers to the use of computational techniques to analyse large quantities of information in order to identify patterns, trends and other useful information. In its report, the Government recognised the value of using TDM in the development and use of AI-based technologies. However, as the factual data and concepts TDM needs to access and use for its analysis are often embedded in copyright works, its use will constitute a copyright infringement unless a legal copyright exception is made for the use of TDM, or permission is granted for its use under a license.

There is an existing exception under UK copyright law in relation to the use of TDM.  However, this is limited to use for non-commercial research purposes. The question posed by the consultation was whether this exception should be broadened or whether the licensing environment for TDM should be changed.

The Government’s response indicates that it will introduce a new copyright exception which would allow TDM for any purpose (including for commercial use). Under the proposed change, rights holders would not have the option of opting out of the exception. However, they would still be able to safeguard their content by relying on the requirement for lawful access, which allows rights holders to choose the platform where they make their works available and to charge others for access to it. A further safeguard available to rights holders is to take measures to ensure the integrity and security of their systems.

The proposed exception is expected to:

  • bring benefits to a wide range of stakeholders in the UK, including researchers, AI developers, small businesses, and journalists
  • benefit the wider public by, for example, supporting research and innovation in public health and improving targeted products and services for consumers and businesses alike
  • help the UK become more competitive in the international AI landscape by encouraging research in the field and attracting firms that use TDM.

 

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