The UK’s Intellectual Property Office has shelved its planned code of practice on copyright and AI. First proposed last March, the IPO confirmed in June that it had convened a working group to discuss a code for companies that use existing content to train generative AI models.
According to the Financial Times, "the group of industry executives convened by the IPO has been unable to agree on a voluntary code of practice, meaning that it has returned the responsibility back to officials at the Department For Science Innovation And Technology ... officials in the Department For Culture, Media And Sport are also involved".
The group of industry executives included representatives from music industry organisations UK Music, BPI, the Music Publishers Association and the Council Of Music Makers. Tech companies involved included IBM, Microsoft, Google DeepMind and Stability AI.
Plans to develop the code followed the UK government’s decision to abandon a new copyright exception for data mining that would have benefited AI companies. The code, the IPO said, would aim “to make licences for data mining more available. It will help to overcome barriers that AI firms and users currently face and ensure there are protections for rightsholders".
The creative industries remain adamant that any tech company training an AI model with existing content must get permission from the relevant copyright owners. Many AI companies argue that no permission is required because AI training is covered by copyright exceptions - usually relating to data mining - or, under US law, constitutes fair use.
The shelving of the code is definitely a set back for creative industries like the music industry, which have been calling for more clarity regarding the copyright obligations of AI companies. Though AI companies really need more legal clarity too.
Intellectual property lawyer Paul Joseph at Linklaters told City AM that he wasn't surprised that efforts to find consensus between copyright owners and AI firms had failed, adding "it was difficult to understand what the code was intended to achieve".
As for the impact of the code being shelved, he added, “it’s unclear yet whether this is a blow to the creative industries specifically or whether it is a concern to both the creative and tech company stakeholders, given the current default position in the UK".
It is thought the government will imminently publish a white paper on the regulation of AI. It remains to be seen what that says about copyright matters. There is now a fear in the creative industries that a new narrower copyright exception may as yet be proposed.
Last week a committee in the House Of Lords called on the government to clarify the copyright obligations of AI companies, arguing that waiting for test cases in the courts to reach a conclusion is not practical because that could take years. The Lords report also stated that, "we do not believe it is fair for tech firms to use rightsholder data for commercial purposes without permission or compensation, and to gain vast financial rewards in the process".
Copyright owners will be hoping that the government reaches the same conclusion. Commenting on that report, the boss of record label trade group BPI, Jo Twist, said, “the Lords Communications Committee rightly recognises the importance of intellectual property rights in enabling creativity and incentivising innovation – central to the cultural and economic power of the UK’s creative sectors".
"In music we are embracing many of the opportunities of AI that this report also contains", she added, "while striving to ensure that music creators and businesses are properly recognised and rewarded by those using music to develop commercial AI models. We warmly welcome its findings and urge the government to follow the Lords’ recommendations in respect of the creative sector and rights".