Written Evidence Submitted by The Alliance for Intellectual Property

(GAI0103)

About the Alliance

The Alliance for Intellectual Property is a unique association of 19 organisations representing IP rich businesses and creators – sectors that continue to grow and outperform the wider economy. Our members include representatives of the audio visual, music, toy and games, business software, sports rights, branded manufactured goods, publishing, retailing, image, art and design sectors. They share a collective interest in ensuring that Intellectual Property (IP) rights are valued in the UK and around the world and that legislative regimes exist that enable the value and contribution of those rights to be fully realised.

Science and Technology Select Committee Inquiry

The Alliance is delighted to submit evidence to the Science and Technology Select Committee’s Inquiry into the Governance of artificial intelligence (AI). Given our focus is Intellectual Property, we have limited our response to the following question:

To what extent is the legal framework for the use of AI, especially in making decisions, fit for purpose and is more legislation or better guidance required. 

Many of our members will have views on the other questions that the Committee has posed and will include those in their own individual submissions.

Use of Artificial Intelligence (AI)

Within the industries that the Alliance represents, there is increasing use of AI technology. This is perhaps unsurprising given that many of these sectors have been transformed into fully functioning digital businesses, making the concept of analogue versus digital a historical relic. 

Examples of the use of AI in IP rich sectors include the education sector where businesses are using AI to improve IP protection, content discoverability, market prediction, and for their customers: enabling routine search and summarisation tasks and creating new insights. Within the music industry, music streaming services are using AI to personalise users’ experience, artists are beginning to use AI to master or remix a recording automatically, while music production companies are experimenting with AI to generate music and to identify successful artists. Visual artists, including photographers, are also using AI tools and so are artists as part of their practice. While these activities are not taking place at scale, and human creativity and innovation remains at the centre of these industries, the creative sectors are investigating different ways in which AI can be used to further enhance and support the delivery and production of creative works. 

Executive Summary 

There is currently significant debate about how AI interacts with the IP system, both in terms of ownership of output (whether AI created content is covered by existing IP protections) and how AI ingested content is dealt with, to ensure the creators and owners of that content continue to be rewarded. What is certain is that AI cannot function without IP, which is the fuel for its development. Mechanisms to ensure that IP works are not ingested into an AI without the permission of the rights holders, are essential.

Ownership

We do not see AI as presenting questions of ownership that cannot be managed through the current IP framework in such a way as is workable for all those involved in the development or production of an AI generated work.  It is possible that this situation might change over time and as AI content creation develops. However, at present there is no evidence of the degree of uncertainty or disadvantage for users that would warrant significant intervention. Indeed, use of AI is still emerging and evolving, which means any such intervention is premature and may have unintended consequences.

Ingested Content

Text and data mining (TDM) involves using computational techniques to analyse large amounts of information to identify patterns, trends and other useful information and as such is a tool that is in increasing demand by AI data and content hungry developers. The Intellectual Property Office held a consultation that closed in January 2022 to seek views on whether these TDM laws should be changed.

The IPO published its recommendations following the consultation in June 2022. It recommended that the UK’s copyright framework be changed through an expansion of the TDM Exception, which currently only applies for research purposes, for any use including for commercial purposes. If this goes ahead, it would mean that rightsholders would no longer be able to charge for UK licences for TDM and will not be able to contract or opt-out of the exception.

This would mean that companies across the world would be able to take the material of UK creative workers and businesses, copy it and produce ‘clean’ new material which they could sell (and ironically gain copyright protection) without having to gain permission from the UK rights holder of the original work or pay for its full value.

There are a number of serious consequences which could result from the adoption of these proposals which include:

• Significantly reduced licensing and royalty rights of UK creators: Currently, companies which text and data mine must seek permission from the rights holder of the material to use their work under a licence as otherwise it would constitute copyright infringement of the work. Expanding the copyright exception for text and data mining would remove an important revenue stream for individual creative workers and businesses.

• Setting a dangerous precedent for the future: The IPO has not undertaken a full impact assessment to date and therefore not put a value on the benefit a major reform of the copyright framework would bring – or the cost it would incur. This sets a dangerous precedent for how the Government makes policy in the area of copyright.

• Breaching international treaties: The UK is a party to a number of IP related treaties including the Berne Convention, TRIPS and the WIPO Internet Treaties which all make clear the limitations on exception to exclusive rights (known as the Three Step Test). We do not believe the IPO’s current proposals confirm to this Three Step Test.

• Impact foreign investment: Widening the TDM exception would weaken the UK’s IP framework, raising concerns with international rights holders who make significant investments in the UK.

• Impact UK innovation: These proposals are also likely to lead to a decline in further innovation and creativity within the sector as those who may consider entering the industry to produce new material need to have the confidence that their creations will be theirs, and that they can benefit from the work they produce.

• Constrain future trade agreements: This decision will also affect the UK’s negotiating position in future trade agreements. In a number of current negotiations, the UK Government is calling for other countries to improve their IP protection. However, it becomes far more difficult to challenge these countries to narrow their exception regimes whilst at the same time widening our own.

• Increase piracy: Current Technical Protection Measures (TPMs) ensure that content can be exploited by rights users whilst preventing any unlawful use and supporting digital security and privacy for users. If they can be overridden by the Exception, that could have a knock-on effect for piracy as those same TPMs are used as anti-piracy measures.

Summary

The IPO has consistently stated that it will only consider reform of the IP framework when it has evidence that justifies such reform, for example, based on evidence of harm or unrealised benefits. It is our view that, in relation to AI and Copyright, the IPO has not provided any evidence of harm or unrealised benefits to justify reform of the copyright framework at this stage. The Alliance believes that calls for reform are being proposed based on theoretical scenarios as opposed to actual, evidence-based, concerns.

Since the June announcement by the IPO, it has considered further evidence produced by the creative sector. It has agreed to look again at its original decision and we await these new proposals. We believe these reforms must not undermine the position of rightsholders and enable them to continue to monetise their creativity.

(November 2022)