The UK Minister for Science, Research and Innovation has stated in Parliament that the UK Government will not be proceeding with an extension to the UK’s text and data mining exception that would have allowed much broader access to materials needed for machine learning and to train AI systems, which had been proposed in 2022 following the UK Government’s consultation on changes to IP legislation that might be necessitated by the advent of AI. This means that the only exception for TDM will remain its use for non-commercial purposes, which in turn may mean that AI developers are more cautious about doing R&D work in the UK than they might have been if the broader exception had been pursued.
What is text and data mining?
Text and data mining (TDM) typically refers to the use of computational techniques to analyse large amounts of information to identify patterns and trends. Data mining systems work by copying works to extract and analyse the data they contain. However, unless permitted under a licence or an exception (or the material is out of copyright term protection), making such copies can constitute copyright or database right infringement.
Consultation on AI and IP
In 2022, the UK Government’s Intellectual Property Office (IPO) published its response to its consultation on whether changes to patent and copyright legislation might be required to better protect technology created by artificial intelligence.
One of the three specific areas considered was the “licensing or exceptions to copyright for text and data mining, which is often significant in AI use and development“. The two other areas were (i) copyright protection for computer-generated works (CGWs) without a human author, and (ii) patent protection for AI-devised inventions – in respect of both of which the Government concluded there were no changes to the law required at the current time (see our blog post for more on this).
What was proposed on TDM?
In its response to the consultation, the Government stated its intention to introduce a new copyright and database exception which would allow text and data mining “for any purpose” although rights holders would “still have safeguards to protect their content, including a requirement for lawful access“.
The Government’s proposal was in line with its stated ambition to make the UK “a global centre for AI innovation” and part of its wider National AI Strategy. The exception would “ensure the UK’s copyright laws are among the most innovation-friendly in the world“, it said.
The introduction of an exception which allowed TDM for any purpose would have meant rights holders no longer being able to charge for UK licences for TDM of material that was already available legally. However, whilst no formal draft of the exception was published, the requirement for lawful access would have meant that rights holders would be able to choose the platform on which they make their works available, and the basis upon which they charge for access.
It is also worth noting that the proposed exception was not intended to permit any copying of copyright works or databases; it would have been limited to making a copy of the work for the purpose of carrying out computational analysis of the data recorded in the work.
Reversal and tension between the creative industries and the IPO
On 1 February 2023 however, George Freeman MP, the UK Minister for Science, Research and Innovation stated in a debate on AI in the House of Commons that the IPO’s proposal to introduce a general TDM copyright and database exception would not be proceeding.
This move was foreshadowed on 17 January 2023, when the House of Lords Communications and Digital Committee (the “Committee”) issued a report on the creative industries in which it recommended that the IPO “pause its proposed changes to the text and data mining regime immediately“. The Committee further recommended that the IPO conduct an impact assessment on the implications of the proposed changes to the TDM regime for the creative industries. The Committee took evidence from academic experts and industry groups such as the Creative Rights Alliance (CRA). The CRA told the Committee that a robust IP and copyright regime is vital for growth in the creative sector and that “without creators’ rights to copyright protection over the works they create there is little incentive to invest in their own future careers“.
The Committee suggested that the IPO’s proposed changes “take insufficient account of the potential harm to the creative industries” and that whilst developing AI is important, “it should not be pursued at all costs“. Julia Lopez MP, the Department for Digital, Culture, Media and Sport minister, stated that she was “fairly confident” that the IPO’s TDM proposals were “not going to be proceeding“.
The existing UK approach to TDM and that of other jurisdictions
The current UK legislation already provides a copyright exception for TDM under s.29A of the Copyright, Designs and Patents Act 1988 (CDPA) for non-commercial research of copyright works to which a person already has lawful access. This position falls short of the exception proposed in 2022 as it is limited to research for a non-commercial purpose and does not apply to database rights.
Countries and territories that have introduced copyright exceptions for TDM, citing reasons such as attracting AI development to those locations, include the EU, Japan and Singapore.
When the EU amended its TDM rules by introducing a change to support commercial mining, the new regime included an opt-out. The relevant Directive provides that the exception for reproduction and extraction of works for the purposes of TDM applies on the condition that the use of works “has not been expressly reserved by their rightholders in an appropriate manner, such as machine-readable means in the case of content made publicly available online“. The UK IPO on the other hand, had sought to introduce a regime that could be used for all commercial purposes without an opt-out, although with protections for rights holders.
The UK’s shelved proposed exception was similar to the approaches taken in Japan and the US in providing a broad scope of TDM exception, although the latter relies on the “fair use” doctrine in place of a specific TDM exception. Singapore had similarly relied on a “fair use” exception provided for in the Singapore Copyright Act but now has a specific exception which applies to reproduction and communication rights of any use including commercial use. In Australia, there is currently no specific exception in the Copyright Act for TDM and the copying, digitisation, or reformatting of copyright works without permission may give rise to copyright infringement.