AI and copyright law in the UK: balancing creativity and innovation

In March of this year, the government published its much-awaited report on the use of copyright-protected works for the development of AI systems, following its earlier public consultation on the matter. Whilst helpful in setting out the government’s thought processes and priorities, the report stops short of proposing any immediate legislative change or reform. For now, things remain as they are, and there remains the ever-increasing need to best balance the conflicting interests of supporting creativity and encouraging innovation.

The government’s AI copyright consultation and report

The report drew on the responses of just over 11,500 people from the 2024 consultation, spanning both the technology and creative industries.

The consultation, and subsequent report, set out four policy options the government is considering:

• Option 0 — Do nothing (maintain the status quo)
• Option 1 — Strengthen copyright by requiring licensing in all cases.
  • This would mean that AI models could only use copyright works where it had an express licence to do so.
• Option 2 — Introduce a broad text and data mining (TDM) exception.
  • This would introduce a new exception to copyright for “data mining”. A text and data mining exception would allow AI models to undertake text and data mining of copyrighted works, with no right for the copyright holder to reserve their rights or “opt out”.
• Option 3 — Introduce a TDM exception with an opt-out mechanism.
  • The same as Option 2, but with the ability for a rights holder to reserve their rights or “opt out”.

The government initially stated a preference for option 3 but following the consultation and the publishing of the report, this is no longer its preferred approach. Those in the creative industries raised concerns about the disproportionate burden this option would place on rights holders; whilst AI developers questioned the practical value of such reform, noting that widespread opt-outs would likely undermine its effectiveness.

The most supported option from the consultation was Option 1, although it must be noted that many respondents were from the creative industries. The least favoured option was Option 2.

Core findings from the government’s AI consultation

The report is lengthy but helpful in setting out the government’s thought process, the specifics of the views on either side of the debate, and the next steps the government plans to take. In particular, the following key themes are discussed in the report:

Transparency: The majority of respondents to the consultation argued that AI developers should disclose the sources of their training material. From the creative industries, there was strong support for mandatory standards on transparency. Technology companies also supported transparency but argued that commitments should be high-level and industry-led, to help ensure they are proportionate. The government proposes to continue monitoring the effects of transparency rules in other countries. It also proposes to work with industry experts to develop best practices, which will inform any future potential legislation.

Licensing: Many stakeholders felt the government should not introduce legislation and that it was not the government’s place to intervene in the licensing market, which should continue to be a commercial negotiation between the parties involved. Instead, creative sector stakeholders noted that the government should focus on ensuring that the market conditions enable licensing to flourish. Some expressed concern about who would benefit from licensing and argued for fairer licensing outcomes between large organisations, individuals, and SMEs. The government proposes not to intervene in the licensing market at this stage, instead proposing to monitor the market as it develops. It will keep approaches to licensing under review, whilst also monitoring global developments and judicial outcomes.

Enforcement: The government wishes to ensure that the UK continues to have a competitive enforcement framework. Any new enforcement measures, if introduced, must be accessible to rights-holders of all sizes, providing effective redress while remaining proportionate. The government proposes to continue working with partners, including law enforcement and the judiciary, to help ensure the UK enforcement framework remains fit for purpose.

Computer-generated works: In the UK, there are existing copyright protections for computer-generated works created without a human author. Most people who responded to this question in the consultation considered that works created solely by AI should not be protected and supported the removal of this protection for such works, while retaining protection for AI-assisted works. The government proposes to continue to monitor the use and impact of protection for wholly computer-generated works. Further, in the absence of evidence of its ongoing value, the government proposes that protection for computer-generated works in existing legislation should be removed.

Digital replicas: Given the ease with which AI can now replicate someone’s voice or face, there is some support across sectors for enhanced protections for a person’s image and voice. The government plans to explore a range of options for addressing these risks while protecting the potential of this technology to support legitimate innovation. This will include consideration of whether it would be beneficial to introduce a new digital replica or personality right.

What happens next for AI copyright reform?

Whilst the government cannot be criticised for listening to the consultation responses, we are left in a position where no change is imminent, at least in the short to medium term. The government stated that there will be no change until there is a stronger evidential basis that reforms will support both economic growth and wider societal objectives.

If we can assist with advising on your copyright, intellectual property rights or obligations, either as a creative or an AI business, please contact our specialist commercial and technology team.