A new gold rush- exemptions for data mining in the UK

The Intellectual Property Office of the UK Government recently published the result of its consultation on Artificial Intelligence and Intellectual Property: copyright and patents. The consultation took place from October 2021 to January 2022 and focused on three specific areas:

1. Copyright protection for computer-generated works (CGWs) without a human author.
2. Licensing or exceptions to copyright for text and data mining (TDM), significant in AI use and development.
3. Patent protection for AI-devised inventions. Should we protect them, and if so, how should they be protected?

Summary

The IPO decided to propose no change for computer-generated works and for AI-devised inventions at present. However, given AI development is fast-paced, further changes are expected.¹

For text and data mining conversely, legislative action is proposed: a new copyright and database exception will be introduced, which allows text and data mining for any purpose, subject to the requirement for lawful access.

Text and Data Mining

Text and data mining (TDM) uses computational techniques to analyse large amounts of information to identify patterns, trends and other useful information essential to the development of AI technology. The consultation sought views on how to make it easier for people to data mine copyright materials, with a view to supporting AI development and wider innovation in the UK.

Data mining systems copy works to extract and analyse the data they contain; vast amounts of data are required to train AI models. Limitations on the availability of data can result in bias and discrimination against individuals and the stifling of AI innovation.  Unless permitted under licence or a copyright exception, making such copies currently can constitute copyright infringement. Some rights holders license data to allow TDM, others do not. This has financial costs for people using and developing data mining software. To encourage AI development and reduce costs, in 2014 the Government introduced an exception to copyright for TDM (Section 29A of the Copyright, Designs and Patents Act 1988). This exception was limited to non-commercial research only.

Following the consultation, the IPO proposes to broaden the exception to allow TDM for any purpose. If passed, rights holders will no longer be able to charge for UK licences for TDM and will not be able to contract or opt-out of the exception. Rights holders will retain safeguards to protect their content, including a requirement for lawful access, for example by choosing the platform on which they make their works available, charging for access via subscription or a single charge. They can also take measures to ensure the integrity and security of their systems. The aims of this proposal are to reduce the time needed to obtain permission from multiple rights holders and remove expenses in support of the Government’s ambition to make the UK a global centre for AI innovation. This approach aligns with the Department of Digital, Culture, Media and Sport’s policy paper for establishing a pro-innovative approach to regulating AI.

In the consultation, rights holders favoured no change or preferred other licensing solutions to help make more material available for TDM. Conversely, users of copyright and database material favoured the wider exception.

Final Considerations

The Government’s ambitions are worthy, but the proposed TDM exception raises many questions:

• How will the new data mining exception find a place in The Copyright and Rights in Databases Regulations 1997?
• How the rights of creators, holders of database rights and database investors will be protected and treated in light of this new proposed exemption?
• How rights holders will be able to ensure that the use of their data is restricted to the UK?
• What provisions will be made for existing contracts and license agreements established upon the existing TDM exceptions?
• How is the UK Government planning to balance the protection of data and retain the UK’s adequacy status and at the same time compete with countries, such as China, where the rules around data protection are significantly different?

Additional developments are expected; Michelmores will provide a further update.

¹We note that the Federal Circuit in the United States has just considered similar issues and decided that AI cannot be named as an inventor on US patents. See: Stephen Thaler v Katherine K. Vidal, under Secretary Of Commerce For Intellectual Property and Director of the United States Patent And Trademark Office, United States Patent And Trademark Office (2021-2347).