A proposed broad copyright exception for text and data mining that favours AI developers is unlikely to be welcome news for rightholders.
By Deborah Kirk and Brett Shandler
On 28 June 2022, the UK government published its response to its consultation on “Artificial Intelligence and IP: Copyright and Patents”, which commenced in October 2021 (Response).
Among other points, the government has indicated its intention to introduce a new copyright and database exception that allows text and data mining (TDM) for any purpose, provided that the party employing TDM obtains lawful access to the material.
TDM is the use of automated computational techniques to analyse large amounts of information to identify patterns, trends, and other useful information. TDM typically requires the copying of the material to be analysed, which necessitates acquiring a licence from rightholders or relying on a legislative exception.
Rightholders would not be able to opt out of this proposed exception, but they would still have safeguards to protect their content, including a requirement for lawful access, which would give rightholders the possibility to charge for access.
TDM plays a significant role in the development and training of AI systems and applications. Consistent with the aims expressed in its 2021 National AI Strategy, the UK government hopes that the proposed exception, which is weighted in favour of TDM users such as businesses and researchers, will assist in securing the UK’s position as a leading global player in the field of AI.
The proposed exception would make it easier to employ TDM in the UK, but whether relevant rightholders would respond by implementing or bolstering access restrictions to their content, or even by deciding not to publish content at all, remains to be seen.
UK law already provides a copyright exception for TDM under Section 29A of the Copyright, Designs and Patents Act 1988 (CDPA), which was introduced in 2014. This provision is subject to a number of limitations, including that the purpose of the TDM must be non-commercial research, and that the researchers must have lawful access to the material.
This existing TDM exception relates only to copyright, and does not apply to the sui generis database right that exists under UK law. This right arises if substantial investment has been made in obtaining, verifying, or presenting the data in a database. This right protects against the extraction or re-utilisation of all or a substantial part of the contents of the database (which may include the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database). As such, all TDM of databases that qualify for this database right currently requires a licence from the relevant rightholder.
Details of Proposal
The UK government’s proposal to introduce a copyright and database exception that allows TDM for any purpose, with no rightholder opt-out, was the most pro-user of the options canvassed during the consultation. The Response indicates that the proposal was adopted over more balanced options on the basis that it will support AI and wider innovation, and will bring benefits to a wide range of stakeholders in the UK.
The government’s proposal would go further than the TDM exception that the EU introduced in 2019 under the Directive on Copyright in the Digital Single Market (which allows rightholders to opt out of the exception, save in respect of scientific research), and is more comparable in scope to the broad TDM exception available under Japanese law. US law is considered to be similarly favourable to TDM, though relying on the “fair use” doctrine rather than a specific TDM exception.
While rightholders would not be able to opt out of the proposed exception, the requirement for lawful access means that they can choose the platform where they make their works available, and whether and the basis upon which they charge for access. Rightholders will also be able to take measures to ensure the integrity and security of their systems.
Notably, the proposed exception is not intended to permit any copying of copyright works or extraction from protected databases for any purpose. For instance, the current non‑commercial TDM exception is limited to making a copy of a work to carry out computational analysis of anything recorded in the work. Transferring that copy to any other person or using the copy for any other purpose, without the permission of the relevant rightholder, still constitutes infringing conduct.
Analysis and Implications
This proposal is a favourable development for businesses, developers, and researchers engaged in AI. By contrast, it is likely to be a less welcome development for rightholders given their inability to opt out.
In advance of the draft legislation and implementation, relevant rightholders should review the access arrangements for their key copyright works and databases, and if appropriate, consider the implementation of technological protection measures, such as subscription barriers and application programming interface (API) restrictions.
Depending on the commercial impacts of the proposed exception, some rightholders may well decide not to publish their content at all.
Separately, while TDM activities may also raise data protection issues, the government has emphasised in its Response that data protection was outside the scope of the consultation. As such, entities affected by these developments will still be required separately to consider the data protection implications of TDM activities, even if they fall within the scope of the proposed exception.
 The UK government has also indicated that it does not consider that changes to the law are necessary to remove copyright protection for computer-generated works without a human author, or to allow for patent protection for AI-devised inventions.
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