In a move to make the UK more innovation-friendly, the Government has announced a new exception to copyright and database right infringement for 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.

Background

For the last few years, the UK Government has been keen to incentivise investment in AI in the UK. In 2020, the UK Intellectual Property Office (UKIPO) launched a consultation to broadly understand the impact of IP on AI. Then came the 2021 National AI Strategy, with the express aim of making Britain “a global AI superpower”. Then, from October 2021 to March 2022, the UKIPO consulted again on AI and IP, this time specifically in relation to:

• copyright protection for computer-generated works;
• text and data mining, which is often significant in AI use and development; and
• patent protection for AI-devised inventions.

The outcome of that consultation was announced on 28 June 2022, confirming what will (and will not) change.

What is changing?

There will be a new exception to copyright and database right infringement in UK law to allow commercial text and data mining. This builds on the UK’s existing exception for non-commercial text and data mining that was introduced in June 2014.^*

“Text and data mining” means using computational techniques to analyse existing digital works, typically for the purpose of identifying patterns, trends, or other useful information. Data mining methods typically involve copying the underlying works as part of the data extraction process and can therefore constitute copyright and/or database right infringement when performed commercially and without authorisation.

Text and data mining is widely known to improve the efficiency and quality of research and is already widely used. For example, the pharmaceutical industry mines patent literature and academic articles to aid drug discovery and biomedical research. Mined datasets are also widely used for training AI systems, e.g. machine learning solutions that rely on access to high-quality data to learn.

However, under the current UK regime, text and data mining can only legitimately be performed on third party materials for non-commercial purposes (under the existing exception) or otherwise with the permission of the rights holder, e.g. under an open access scheme or bespoke licensing arrangement.

This new exception will therefore be welcomed by AI developers and anyone else engaged in research and development in the UK, as it removes a great deal of cost, complexity and risk in analysing data contained in third party materials. The greater freedom it affords is likely to make the UK a more attractive destination for AI research and development.

Once this change is implemented, rights holders will not be able to charge for UK licences for text and data mining and will not be able to contract or opt-out of the exception. Importantly, however, rights holders can still choose if and how to make their works available and can still charge for access to their works. Those seeking to rely on the new exception will only be able to do so if they have “lawful access” to the work.

What is not changing?

The UK Government has decided not to make any changes to the law on copyright protection for computer-generated works, as there is no evidence that the current regime (which offers a more limited copyright term for computer-generated works than for traditionally authored works) is harmful and use of AI for this purpose is still in its early stages. The law in this area will, however, be kept under review.

In addition, no changes will be made to the UK’s patent laws relating to AI-devised inventions. The consultation outcome notes that most respondents felt that AI is not yet advanced enough to invent without human intervention and thus no change is required in the short term. However, this area of law will also be kept under review and the UK Government will seek to advance AI inventorship discussions internationally to support UK economic interests.

Comment

This is a welcome change for those involved in AI and other research and development activities in the UK and is likely to boost AI investment in the UK. It is clearly unfavourable to rights holders, but the consultation outcome stresses that they 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.

*S29A Copyright, Designs and Patents Act 1988.