UK seeks greater AI investment with changes to IP law

On 28 June, the UK Government announced a proposed change to IP law intended to drive innovation and investment in AI. The change comprises a new exception to copyright and database right infringement which will allow commercial text and data mining. Rights holders will not be able to opt-out or contract-out of the exception but can still control access to their data.

This new exception will be welcomed by AI developers and those engaged in research and development in the UK, as it removes significant cost, complexity and risk arising out of analysing data contained in third party materials.

The consultation outcome stresses that rights holders will still have safeguards to protect their content, including the requirement for lawful access, effectively giving them the options to charge for access to their data, to restrict access to it or even to withhold access altogether.

Those wishing to rely on the exception should note that it is not a blanket permission to use lawfully accessed data for any purpose whatsoever. Where a data set contains any personal data, data miners will still need to ensure that they are compliant with data privacy laws. Further, if the data is confidential, the rights holder may be able to prohibit or restrict text and data mining on that basis.

This proposed new exception is not unprecedented internationally. Japan has had an exception for certain text and data mining for more than a decade. The EU also introduced an exception for commercial text and data mining in its 2019 Directive on Copyright in the Digital Single Market, although its version is more limited since it allows rights holders to opt out “in an appropriate manner”, e.g. using machine readable means. The US copyright regime is also likely to be favourable to text and data mining practices given the flexibility of the US fair use doctrine.

We expect to see the Government’s legislative proposal during 2023, which should provide greater clarity in respect of the parameters of this proposed new exception. For further analysis on the proposed changes, see our latest DigiLinks blog post, UK Government announces new copyright exception for commercial text and data mining (linklaters.com)