What's the issue?

Following a call for views on the interaction of AI and IP, the UKIPO published a consultation on AI and IP, focusing on whether copyright and patent legislation needs to be amended to ensure an appropriate balance between encouraging and protecting innovation. 

The consultation focused on three areas:

• whether copyright protection should apply to computer-generated works (CGWs) without a human author
• whether there is a need for licensing or exceptions to copyright for text and data mining (TDM), in particular when used for AI development, and
• whether patent protection should be available for AI-devised inventions.

What's the development?

The government has published its response to the UKIPO consultation and has decided:

• it will not propose changes to the law regarding CGWs without a human author, which are currently protected in the UK for 50 years.  There is no evidence to suggest that protection for them is harmful and the use of AI is still in its early stages.  Proper evaluation is not possible so this area will be kept under review
• there will be a new copyright and database exception to allow TDM for any purpose.  Although factual data, trends and concepts used for TDM are not usually protected by copyright, they are often embedded in copyright works. TDM systems copy works to extract and analyse the data they contain. Unless permitted, the making of such copies constitutes copyright infringement. A copyright and database exception for TDM was introduced in 2014 but is limited to non-commercial research. Despite the consultation eliciting a variety of different opinions, that exception will now training AI is one of the most important prerequisite for investment. Rights holders benefit from safeguards to protecting their content, including a be extended to cover TDM for any purpose. According to the government, the change will encourage innovation and ensure that the UK keeps pace with other countries which already have similar exceptions. Indeed, the UKIPO's recent report on IP and investment in AI notes that access to data for requirement for lawful access.
• no changes are planned to patent law to protect AI-devised inventions for now.  Most respondents felt AI was not yet advanced enough to invent without human intervention.  This area will also be kept under review.

The government also asked related questions about the implications of AI and the policy on CGWs on protection for designs, but no significant concerns were raised. Conversely, while concerns were raised about possible false attribution of CGW works to human authors (in order to try to benefit from the longer term of copyright protection), most felt this could be dealt with under current laws.

What does this mean for you?

The National AI Strategy sets out how the Government aims to secure the UK’s position among the global AI superpowers. However, it's clear from this consultation that it is still too early to legislate in many areas.

One area where the government has decided it can legislate is TDM - there will be a new copyright and database exception to allow TDM for any purpose. The impact of this change will particularly be felt by rights holders who have monetised the licensing of content for TDM. 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. However, they will have safeguards including the requirement that TDM can only take place where there is lawful access. Rights holders will be able to choose the platform where they make their works available to control such access.

Meanwhile, the government will keep copyright and patent laws under review. Some concerns were raised in the consultation that AI systems can generate huge numbers of works and protecting them under the law of copyright (as the UK currently does for 50 years) could crowd out human creators. It is for this reason that there was some support for replacing the current protection for CGWs with a new right of reduced scope and/or duration. While the government will not do that now, it is one possible direction of future travel.

On the patents side, the Court of Appeal (and the Enlarged Board of Appeal of the EPO) both recently ruled that an AI machine cannot be named as the inventor of a patent. Nonetheless, it is clear that AI-assisted inventions are patentable as long as a human inventor is named (presumably the owner of the AI). The government has said that nothing needs doing for now since the technology is not sufficiently advanced. It therefore seems unlikely that there will be a change in the foreseeable future.

Other mechanisms to encourage innovation remain possible - in its recent report on IP and investment in AI, the UKIPO noted that the difficulty of protecting software inventions with patents tended to limit the ability of software start-ups to attract investment. The report envisages that the UK will, like other countries, need to provide mechanisms such as patent pools and specialist investment funds to ensure that they can remain globally competitive.

The government has shown its willingness to legislate in this area, but that it will also wait where necessary until there is a sufficient evidence base to come to a view. Meanwhile, stakeholders are encouraged to provide any new evidence to the UK IPO on the issues raised.