A difficult relationship
AI and copyright
A difficult relationship: AI and copyright
A difficult relationship: AI and copyright
Recent artificial intelligence (AI) tools have demonstrated an apparent ability to conjure creative material from the ether. These AI tools are trained to process vast amounts of existing works and produce “new” works in response; they recover patterns and relationships, which they then use to create rules, and then make judgments and predictions, when responding to a prompt. However, this process comes with legal risks, including intellectual property infringement: the UK’s current legal framework prohibits the copying of data for the purposes of training AI models for commercial purposes.
There is, therefore, some tension between the need to preserve intellectual property’s role in promoting (and protecting) human creativity on the one hand and encouraging innovation in AI on the other. This tension was particularly evident when New York Times issued proceedings against OpenAI and Microsoft for copyright infringement. Proceedings of such nature are unlikely to stop anytime soon, too. How, then, do we reconcile these diametrically opposed interests?
In summer 2023, the UK government outlined its plan to tackle this particular issue by working with users and rights holders on a code of practice on copyright and AI. The government said that the code of practice would aim to make licences for data mining more available, and would help to overcome barriers that AI firms and users currently face whilst also ensuring that there are adequate protections for rights holders. The plan was that this would ensure that the UK copyright framework promotes and rewards investment in creativity whilst also supporting the ambition for the UK to be a world leader in research and AI innovation.
However, it has recently transpired that the government’s plans to create a code of practice were not viable at this stage. The impasse highlights the delicate balance the government is trying to reach between protecting the creative industries, while allowing growth and innovation for AI. In an attempt to create a code of practice, the Information Commissioner’s Office (ICO) (tasked with copyright regulation) has been in talks with AI firms and rights holders to produce guidance for text and data mining used to create AI models like ChatGPT. However, the AI companies and rights holders have been unable to reach an agreement. The result is that the responsibility to come up with a solution has reverted back to the Department for Science, Innovation, and Technology (DSIT).
In its AI white paper response, DSIT confirmed that it has abandoned hope of achieving an industry-led solution for now but that it will continue to liaise with representatives from the AI and creative sectors to find a workable alternative. A voluntary code of conduct is clearly not possible at this time. Instead, “DSIT and DCMS ministers will now lead a period of engagement with the AI and rights holder sectors, seeking to ensure the workability and effectiveness of an approach that allows the AI and creative sectors to grow together in partnership.”
The approach, it seems, will be to focus less on regulation in the statutory sense and more on transparency; Michelle Donelan, UK secretary of state for science, innovation and technology, has commented: “We think we have a pathway forward that will particularly focus around transparency, but we don’t want to rush and announce something that damages either one of [the AI and creative] sectors so even if it means taking a little bit longer to get these things right, we think that is the right approach”. Transparency will be of some, but not complete, comfort to rights holders – ultimately, we do not anticipate that it will be enough to stem the flow of litigation arising out of breaches of intellectual property rights by AI.
For further information on this topic, please contact Paul Walsh and Jack Lewis.
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