New UK data mining copyright exception ‘welcome news’ for AI developers

Gill Dennis of Pinsent Masons said the proposed reform would be “welcome news” for developers who use TDM to access data to train new AI tools – but warned that the change could have “unintended consequences” if rightsholders withhold access to their works as a result.

It comes after the government published its response to a public consultation on AI and intellectual property (IP) that set out plans to introduce a new copyright and database exception which allows TDM for any purpose. Currently, the exception in the 1998 Copyright, Designs and Patents Act allows TDM for non-commercial purposes, provided that the AI developer has lawful access to the work via, for example, a licence, subscription or permission in terms and conditions.

Dennis said: “This will be welcome news for AI developers. The extension of the exception means the only safeguard left for rightsholders is that AI developers will still require lawful access to the work, and as a result, many may put their data behind a subscription wall and charge for access to it in future.”

She added: “The extension could, however, have an unintended consequence if rightsholders simply refuse to publish their data – thereby undermining the very reason for extending the exception in the first place.”

The government’s consultation also considered copyright protection for computer-generated works (CGWs) without a human author and patent protection for AI-devised inventions. In their response, ministers said the law on CGWs would be kept under review but added that no changes were currently planned. It means that original literary, dramatic, musical, or artistic work that is generated solely by AI will be protected by copyright for 50 years from the date on which it was made.

Dennis said: “The decision to maintain the status quo around the CGW exception – at least for now – is a pragmatic one. Giving copyright protection to the creative outputs of AI incentivises its development and use in the UK, which is very much in line with the government’s plans to make the UK an AI world leader.”

She added: “Although the government has pledged to keep the exception under review, to remove or limit it would be something of a backwards step from the government’s perspective and so is probably unlikely to happen.”

The government also confirmed that there were no planned changes to UK patent law for AI-devised inventions. It said the rules would be kept under review to ensure that the UK patent system supports AI innovation and the use of AI in the UK. It also said it would seek to advance AI inventorship discussions internationally to support UK economic interests.

Sarah Taylor of Pinsent Masons said it was “encouraging” to see ministers pledge to continue international discussions, adding: “The government’s response did, however, acknowledge respondents’ concern that, as a result of the publicity surrounding the Thaler case, there is a risk that the incorrect conclusion that UK patent law does not protect AI-assisted inventions may be reached.”

She added: “This is, of course, not the case – a patent may be granted for an AI-assisted invention, provided the application satisfies the legal requirements set out in the 1977 UK Patents Act.”