UK Government Publishes Response to Consultation on AI and IP

As we reported in September 2020, the UK IPO, on behalf of the UK Government, conducted an open consultation in relation to how artificial intelligence (AI) should be dealt with in the patent and copyright systems. The UK government has now published its response to that consultation.

The consultation focused on three specific areas where there were seen to be actual or potential difficulties arising from the current IP laws in the UK and the development of AI systems. These were:

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

The latter issue is, of course, particularly topical in light of the widespread, but so far unsuccessful, attempts by the team behind “DABUS” to get patent applications accepted without naming a human inventor (see reports here, here and here).

The UK Government has decided to take a “wait and see” approach on both the first and last of the three issues. There will be no change to the law in either area, but these questions will be kept under review and there may be changes in the future if the evidence supports this, or international harmonisation is agreed.

In relation to CGWs, the response states that “there is no evidence at present that protection for CGWs is harmful, and the use of AI is still in its early stages. As such a proper evaluation of the options is not possible.” The response indicated a particular concern that any changes at this stage could have unintended consequences.

In relation to AI-devised inventions, the response notes that “most respondents felt that AI is not yet advanced enough to invent without human intervention” but that they will “seek to advance AI inventorship discussions internationally”. The detailed response also notes that most respondents felt that a unilateral change in the UK law may prejudice international patent filings and so any change to the law on inventorship must be harmonised internationally. The response also points to another fundamental issue with the naming of AI inventors, which is that there is no consensus (nor indeed legal framework) for who should own patents if an AI system is the sole inventor.

However, a significant change is proposed in relation to TDM: the response indicates that the government has decided to introduce a new exception to both copyright and database rights which allows TDM for any purpose. This is the most permissive of the range of options suggested in the consultation and is stated to have been adopted because it is viewed as “most supportive of AI and wider innovation”.

At present, a limited exception to copyright for TDM exists in amendments introduced in 2014 to the Copyright, Designs and Patents Act 1988. However, this exception is limited to “non-commercial research”, in line with EU legislation from that time. The response to the consultation highlighted that, whilst the content actually used for TDM is often not protected by copyright, the initial steps of extracting and analysing data almost inevitably involve copying of copyright works in which that data is embedded. To date this has required anyone wishing to conduct data mining on such works for commercial purposes to seek a licence from the right(s) holder. The responses to the consultation indicated that there was currently a wide range of approaches by rights holders to licensing and that the complexity and cost of identifying and agreeing licences with many rights holders was restrictive for the performance of TDM.

The proposed change is seen as helping to make the UK a more competitive location for businesses engaged in data mining, as well as potentially speeding up the use and development of AI in a wide range of sectors. The change is heralded as ensuring that the UK’s copyright laws are “among the most innovation-friendly in the world” in line with the Government’s stated ambition to make the UK a global centre for AI innovation.

Of course the change will not be welcomed by rights holders, whose response to the consultation were, unsurprisingly, unanimously against this. The response accepts that rights holders will lose out on revenue for licences for TDM and will have no way in which to contract or opt-out of the proposed exception. However, the response considers that right holders will still have “safeguards” to protect their content, including a requirement for lawful access. This means that rights holders can choose the platform(s) where their works are available, including charging for access via subscriptions or per-use charges. It remains to be seen how effective such safeguards are in practice.

No date has been identified for the introduction of the new exception and, until it is introduced, TDM will only be permissible for non-commercial purposes or under an appropriate licence.