Almost two years since the government abandoned its first proposal for a TDM exception following intense lobbying from the creative industries (see our prior article here), The UK Government has launched a wide-reaching consultation aimed at finally settling the ongoing debate surrounding copyright law and artificial intelligence (AI). This ambitious and long-awaited consultation seeks feedback on a range of critical areas, including text-and-data-mining (TDM) exceptions, the territorial scope of UK copyright law, collective rights management, transparency requirements, and the thorny issue of protecting AI-assisted and AI-generated works.

As AI's influence on the creative industries grows, the UK faces the challenge of catching up with the European Union on these issues, and balancing the rights of creators and rightsholders with the need to foster AI innovation. The consultation acknowledges the difficulties rightsholders face in controlling the use of their works for AI training, recognising that this legal uncertainty can stifle investment and hinder AI adoption.

Seeking to strike a balance, policymakers propose adopting a TDM exception to copyright allowing AI developers to use copyrighted works for training purposes. This exception would be coupled with an "opt-out" rights reservation package for rightsholders and greater transparency requirements, an approach that draws inspiration from the EU’s framework while seemingly aiming to address some of its shortcomings.

Introducing a New TDM Exception

The government now proposes updating UK copyright law by introducing a new and revised TDM exception, with the following key features:

• It would apply to TDM for any purpose, including commercial use.
• It would apply only where the TDM user has lawful access to the works, enabling rightsholders to seek remuneration at the point of access (e.g., through paywalls).
• As in the EU, rightsholders could "opt-out" of having their work used for TDM, requiring AI developers to obtain a licence.

While acknowledging the potential of technologies that allow rightsholders to reserve their rights, the consultation raises concerns about the current lack of standardization in this area, as well as the challenges faced by rightsholders in knowing how to validly reserve rights under the EU’s Copyright Directive 2019/790. As in the EU text, UK policymakers propose that rights in online works "should be reserved using effective and accessible machine-readable formats, standardized as far as possible." For all other works, the text only refers to “agreed mechanisms.”

Transparency Measure

Transparency in the AI training process is a cornerstone of the government's proposal and it unsurprisingly borrows some of its key features from the EU AI Act. Suggested measures include:

• Disclosure of specific works and datasets used in AI training.
• Disclosure of web crawler details, including ownership and purpose.
• Record-keeping requirements to demonstrate compliance with rights reservations.

Recognizing the practical challenges these measures might pose, the government seeks input on how to best implement and enforce transparency.

Reviewing the Computer-Generated Works Provision

The consultation revisits the controversial "computer-generated works" (CGW) provision under the Copyright, Designs and Patents Act 1988 (CDPA), which protects "original" works "without a human author." This provision has long been criticized for its inherent contradiction – how can a work without a human author be considered "original"? The government seeks feedback from those who have relied on this provision, hinting that its removal is a possible outcome if the consultation doesn't reveal sufficient benefits.

Moving Forward

The government's ambition extends beyond TDM, with plans to clarify copyright law more broadly thereby potentially marking one of the first significant forks between EU and UK copyright law. This includes clarifying the scope of the "temporary copies" exception for AI developers and its international application. International collaboration is also prioritized to work towards greater interoperability.

Looking ahead, the government identifies several areas for future consultations or consideration:

• Deepfakes, digital replicas, and the intriguing possibility of introducing "personality rights."
• Copyright protection for computer-generated designs.
• The copyright implications of AI generating infringing outputs.
• Regulations for consistent labeling of AI outputs.

Responding to the Consultation

The consultation closes on 25 February 2025, providing a valuable opportunity for all stakeholders to contribute to this important debate.

Closing Observations

This consultation marks a significant—and much-needed—step forward as the UK grapples with the rapid evolution of AI and competing frameworks being adopted by its neighbours. While aligning with the EU framework in some respects, the consultation also acknowledges its limitations, offering the potential for a more robust and tailored approach in the UK, or for another source of regulatory fragmentation. This is a pivotal moment for copyright law in the age of AI, and the outcome of this consultation will undoubtedly shape the future of creativity and innovation in the UK.