Government proposes changes to legislation following AI and IP consultation

No changes are planned for AI-devised inventions, but a new copyright and database rights exception is promised for data and text mining

The UK Intellectual Property Office (UKIPO) has published the outcome of the UK Government’s consultation to gain views on AI and IP: copyright and patents. The consultation, which ran from October 2021 to January 2022, focused on three areas:

  • Copyright protection for computer-generated works without a human author. These are currently protected in the UK for 50 years. But should they be protected at all and, if so, how?
  • Licensing or exceptions to copyright for text and data mining (which is often significant in AI use and development).
  • Patent protection for AI-devised inventions. Should the UK protect these inventions and, if so, how should they be protected?

Copyright protection for computer-generated works and AI-devised inventions

For computer-generated works and AI-devised inventions, the Government does not plan to make any changes to the law. According to the UKIPO, there is no evidence at present that copyright protection for computer generated works is harmful and the use of AI is still in its early stages such that a proper evaluation of any possible changes is not possible.

Several respondents noted there has been only one court case dealing with computer-generated works and this did not involve AI, and there was little supporting evidence that users and developers of AI rely on copyright protection for computer-generated works. For AI-devised inventions, the majority of the respondents to the consultation indicated that AI is not yet advanced enough to invent without human intervention. The UKIPO has agreed that it will continue to review the law in respect of protection for computer generated works and AI-devised inventions.

Although no changes to the law relating to AI-devised inventions are planned, the views of the respondents are possibly a useful indication on the current perception of AI. According to the UKIPO, almost all respondents shared the view that AI is a tool used by human inventors, and many respondents believe AI is not capable of inventing without significant human intervention. Therefore, it is not surprising that many respondents believe the current IP framework is enough to protect AI-assisted inventions. That said, many respondents agreed that future developments in AI may require legislative changes at an international level to protect inventions devised by AI. A further analysis on AI-devised inventions can be found in our article on Patenting AI: The nature of inventorship and the mechanics of ownership.

Text and data mining

For text and data mining, the Government plans to introduce a new copyright and database exception which allows text and data mining for any purpose.

Text and data mining techniques involve copying works in order to perform computational analysis to identify patterns, trends and other useful information embedded in the works. Whilst these patterns and trends themselves are not protectable under copyright, the preliminary acts of copying the works in which those patterns and techniques are embedded are acts of copyright infringement unless the copyist has a licence or can rely on an exception. Currently, UK law provides an exception to copyright infringement for text and data mining performed for non-commercial research, a limited exception introduced in 2014 under the UK’s EU law obligations.

Following the consultation, the Government has announced its intention to introduce legislation to broaden this exception. The new exception will extend to both copyright and database rights and will cover text and data mining performed for any purpose, with rights holders unable to opt out or contract out of this position. The UKIPO’s consultation response reasoned that this broadening would help make the UK a more competitive location for firms performing data mining, as those firms will no longer find themselves delayed by the process of seeking a licence or being priced out of a licence. The UKIPO’s response stressed that copyright holders would still have safeguards to protect their works, including the requirement for lawful access to those works. The UKIPO’s response does not specify whether the Government believes these safeguards are already provided for in UK law, or whether they will be the subject of additional provisions in any forthcoming legislation.

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