New year, new law? The government consultation on Copyright and AI

On 17th December 2024, the UK Government launched a new consultation on the hot topic of copyright and AI. While the principal legislation on copyright, the Copyright, Designs and Patents Act 1988 (the ‘Act’) has been amended over time, it is arguable that the foundational principles are being stretched to breaking point by the IP challenges that the new age of AI brings, and this consultation is essential given the exponential growth of AI.

The UK's AI copyright consultation

The consultation will run until 25th February 2025, seeking input from stakeholders on an AI framework that would benefit both creatives and technologists alike. Alongside the consultation, the Government have also issued a summary assessment of some of the specific proposals raised in the consultation itself.

The aims of the AI consultation

One uncertainty the consultation aims to address is the protection available to outputs of generative AI, looking in particular at the protection that some of those with no human author currently receive under the Act as ‘computer-generated works’ (CGWs). The consultation asks for stakeholder input on the policy options of:

1. making no change to the law in this respect;
2. reforming the current law; and
3. removing CGW protection altogether.

One of the suggestions for reform raised in option 2 is that the ‘originality’ requirement for protection of CGWs – which has become a sticking point for AI-generated work – could be defined, or even removed to mirror the law for entrepreneurial works. The test for originality is currently based on a myriad of UK and EU case law, so legislating on this central element of copyright may have the potential to lead to substantial changes in practice. Despite this, the consultation does currently reveal that “should consultation reveal insufficient evidence of positive effects from CGWs protection, our preference will be to remove it.” This may come as a relief to many creators.

In addition, the consultation seeks to specifically review how infringement of copyright by AI outputs may be better monitored and enforced against. A ‘Creative Rights in AI Coalition’ made up of organisations in the creative industry concerned about the protection of their rights was in fact launched the day before the consultation. The collection of publishers, authors, artists and music producers, amongst others, have issued a statement and set out the key principles which they hope the Government will follow. The coalition calls for a dynamic licensing market, transparency, and growth and innovation. Inseparably linked to this is that of AI training, which the consultation is also importantly seeking views on. One interesting option that the consultation suggests is the introduction of some form of data mining exception to copyright law, potentially balanced with an ability for creators to reserve their rights or require licensing. The consultation notes the similar exception for text and data mining that already exists in the EU.

There are of course many other notable points that the consultation aims to address, such as the increasing issue of ‘deepfakes’ and cross-border considerations. Overall, it will be interesting to see the outcome of this essential consultation. Given the sharp rise in the use of AI and that the outcome could affect many of us in ways we may not even yet realise, those with an interest should be encouraged to submit their views.