Nothing Artificial about the impasse on AI code of practice

The Intellectual Property Office (IPO), the Government body responsible for overseeing intellectual property rights in the UK, has confirmed in its response to the AI White Paper consultation that it has been unable to facilitate an agreement for a voluntary code of practice which would govern the use of copyright works by AI developers. For those wanting AI driven solutions this means continued uncertainty and a likely increase in litigation in this area. In the absence of the code, we anticipate that it will be for the Government to legislate or for courts to apply existing law to delineate the issues.

The code aimed to make licences for copyright protected content and data mining more available, to help AI firms overcome barriers to development[1]. At the same time, licences would help to ensure that the UK copyright framework promotes and rewards the creative sectors. There is growing concern in creative industries and media organisations regarding copyright protections in the era of generative AI, as AI developers rely on a wide range of copyright protected which publicly available to train AI models. However, the IPO’s consultation only proved that the gap between the rights holders and AI developers was too big and the working group was unable to come up with an agreement to bring the parties together.

This means there is ongoing uncertainty for parties on both sides of the issue. Ministers from the Department for Science, Innovation and Technology and Department for Culture, Media and Sport will now lead a “period of engagement”, with a focus on “greater transparency from AI developers in relation to data inputs and the attribution of outputs having an important role to play”. The timescales and outputs from the period of engagement are yet to be defined.

We anticipate that there will be increased litigation on this issue in the interim, as the current position in the UK is that using content protected by copyright to train AI is, except in limited non-commercial circumstances, unlawful without the rightsholders’ permission. In the United States, the New York Times commenced a lawsuit in December 2023 against the creators of ChatGPT, OpenAI and Microsoft, for copyright infringement, claiming that “millions of articles published by The Times were used to train automated chatbots that now compete with the news outlet as a source of reliable information”.

Even though the risk of litigation in this area appears to be on the rise, the UK Government is seeking to “supercharge” the UK’s position on AI in order to make these technologies central to the UK’s development as a global science and innovation superpower (as we reported in our previous article). The UK Minister for AI and Intellectual Property describes this ambition as “a once-in-a-generation opportunity for the British people to revolutionise our economy and transform public services for the better and to deliver real, tangible, long-term results for our country”.

In the context of this push from the Government for rapid AI development, tech firms need clear guidelines on their responsibility to obtain consent from rightsholders. Businesses buying AI services will expect certainty that they will not be subject to intellectual property infringement claims and will rightly seek warranties from the sellers in this regard. The IPO report states that the “AI technology and creative sectors, as well as our media, are strongest when they work together in partnership”, however in the absence of the voluntary code it may be that legislation is the only realistic means of ensuring content creators are appropriately compensated for their work. The question is whether the Government will back a bet on the future being AI driven or seek to enhance and protect the fantastic creative sector which already accounts for more than 5% (£109 billion) of the UK’s economy.

If you would like further insight into this topic or advice on AI agreements, licensing arrangements or claims relating to intellectual property rights our Technology & Innovation and Intellectual Property teams are well-placed to advise you.

[1] https://www.gov.uk/guidance/the-governments-code-of-practice-on-copyright-and-ai