Supplementary written evidence from the Alliance for Intellectual Property (GAI0118)

About the Alliance

The Alliance for Intellectual Property is a unique association of 20 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.

Use of Artificial Intelligence (AI)

IP rich industries, and in particular the creative sectors, are already actively using Artificial Intelligence (AI) and investigating different ways in which AI can be used to further enhance and support the delivery and production of creative works. 

AI derived content (outputs)

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 as the Courts make judgements over the level of protection offered to AI generated works 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 legislative intervention.  We do, however, believe that transparency over whether a work has been created by AI could be extremely useful for both creators and the public.  We believe the Government should consider such transparency as part of its work around the regulation of AI.

Inputs (ingestion)

It is a core principle of our legal framework that intellectual property rights protect innovation and creativity.  For the creative industries, copyright, and its protection, is the fundamental basis of their economic model whilst also giving control over how those works are utilised.

Those rights should not and cannot be reformed without significant evidence of why such reform is required.  The Government, in its approach to its proposed reform of Text and Data Mining (TDM) in 2022, nor since, has provided any evidence that the IP framework, and the UK’s copyright laws in particular, are in any way inhibiting the development of AI technology and AI based businesses.  The Government appears to have accepted this, in its reversal of that original decision, though we note that no formal statement to that affect has been published, though Ministers have said as much at the dispatch box and in appearances before several Parliamentary Committees.

In the recent Budget, the Government published Sir Patrick Vallance’s report Pro-innovation Regulation of Technologies Review Digital Technologies. It highlighted that “There is an urgent need to prioritise practical solutions to the barriers faced by AI firms in accessing copyright and database materials.”

To support this, the Intellectual Property Office has committed to producing a code of practice which will provide guidance to support AI firms to access copyrighted work as an input to their models, whilst ensuring there are protections (e.g labelling) on generated output to support rights holders of copyrighted work.

We note that the Vallance Report contained no evidence of the barriers faced by AI firms and any failings in the current licensing system.  We have, however, consistently offered to sit down and engage with AI firms concerning licensing and will do so as part of the IPO process, though we note that any codes of practice must not impinge on the existing statutory rights of IP owners nor lead to some form of statutory pricing of content.

The more pressing question that the Government should be asking is why more licensing of content by AI firms is not happening.  It is our view that this is not because of failings in our licensing system but because there is mass copyright infringement taking place by these AI firms.  Rather than seek licenses from content owners, it is clear that many AI developers have simply decided to ingest content without permission. It is our view that too many AI firms are acting like Napster rather than Spotify, with the crucial difference being that many content businesses are ready and willing to licence as was not always the case in the early days of Napster.

The Government cannot condone such activity.  In not addressing such infringement through a policy response it is in danger of condoning it.  In our original submission to the Committee, the threat of such infringement was largely theoretical.  In the last few months, as more AI products have been launched and AI developed content published, we can see the evidence that proves such content could only have been created through the mass ingestion of copyright protected works. 

We believe the Government should challenge the AI sector to be transparent over the works they have ingested, the systems they have in place to avoid ingesting copyright protected works and the steps they have taken to seek licenses from the owners of such works.

The Government’s AI White Paper only made a very short reference to intellectual property when it said “Government is taking wider action to ensure the UK retains its status as a global leader in AI, for example by taking forward Sir Patrick Vallance’s recommendation relating to intellectual property law and generative AI.  This will ensure we keep the right balance between protecting rights holders and our thriving creative industries, while supporting AI developers to access the data they need.” We believe the Government needs to make the interaction between AI and the UK’s IP system a greater policy priority given the significant impact it is having on the creative industries in particular.

In encouraging such transparency and licensing the Government can help build a legitimate AI sector that benefits both AI developers and content producers.  Ultimately, AI developers will only thrive if their outputs are trusted by the public which requires high quality of inputs.  Without an incentive for content creators to develop these quality works, AI developers will suffer.  Mass infringement of copyright works will not provide those incentives and therefore it is in the interests of both AI firms and content producers that copyright is respected and licenses for content are sought.

15 May 2023