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  • Writer's pictureChelsea Chung

UK halts its expansion of existing TDM exception for copyright infringement

by Chelsea Chung on 11/02/23



Summary

After a public consultation held between October 2021 and January 2022 on a potential reform of the Copyright Designs and Patents Act 1988 (CDPA), the UK government have recently decided to cancel plans to expand the scope of the text and data mining (TDM) exception detailed in section 29A of the CDPA.


Legal Background

As in many other jurisdictions, The CDPA provides a limited amount of fair use provisions as exceptions to copyright infringement. Section 29A amongst the various provisions entails an exception for acts of TDM of copyrighted works and databases for non-commercial purposes, with the prerequisite being that the user has acquired lawful access to the work beforehand from, for example, a licence, subscription or permission in terms and conditions.


The UK government last year expressed strong intention to expand the scope of section 29A to allow TDM for any purpose, which would include commercial uses. Moreover, right-holders would not be able to opt-out or contract out of this exception, further diminishing their control and autonomy over uses of their own work.


The government explained that their intention behind this move was to elevate the UK’s position in the innovation economy, effectively making it a global AI and innovation hub. This is because AI-generated works often draw on copyrighted information (consider the latest boom of ChatGPT), meaning that development of such works would need to seek for protection under fair use provisions to avoid copyright infringement. It is important to note that AI-generated works are often for commercial uses and have independent economic significance. However, as only works for non-commercial or research purposes are exempted under section 29A, they are most likely not exempted by the provision and instead require licensing from right-owners to be lawful. This is often very difficult to achieve, considering in most situations the extraction of information happens across a wide range of sources where there are thousands of right-owners involved.


Why this happened

So why was the plan cancelled despite all those benefits? The government’s proposal quickly attracted an overwhelming amount of criticism and opposition, mostly from those who demand protection for artist integrity and originality. A stakeholders report from the Design and Artists Copyright Society(DACS) in response to the TDM proposal suggests that artists extremely value licensing their work, as it provides autonomy over the use of their work and the resulting remuneration. The House of Lords’ Communications and Digital Committee also published a report citing strong opposition from representatives of the country’s music, publishing and academic sectors. For example, UK Music was“deeply concerned” about the introduction of a “blanket exemption” for TDM, which “would allow AI music to be created using copyright content that those controlling the AI do not own, with no compensation to the artists and rights holders whose investment created it”.


The parliamentary and right-holder opposition has been made more significant by the copyright infringement claim recently brought by Getty images, who allege Stability AI of unlawful copying and processing of copyright images.


What does this mean

Although the government’s decision to put a stop to the legislative expansion is commendable in light of the articulated concerns regarding the potential negative impacts on the creative industry, it is also arguable that keeping the current exception could hinder the UK’s ambition of leading the global innovation economy.


The UK’s TDM approach is ultimately on the restrictive side of the spectrum in comparison with other major countries. Notably, the US approach is arguably more favourable to TDM practices than what is under English law, with section 107 of the US Copyrights Act providing a flexible fair use doctrine as opposed to the UK’s closed system of exceptions. The court considers a number of factors to determine whether a certain use of a copyright work is fair, which means that litigations are decided on a less rigid case-by-case basis. Other jurisdictions such as the US might therefore appear more appealing for further AI-developments, which could lure UK tech companies and start-ups to move the focus of their business across the Atlantic. This could therefore put the UK at a disadvantage in the tech sector compared to its counterparts amongst the world’s leading countries, which would not be ideal considering it is still trying to recover from its gloomy economic outlook, being possibly the only G7 economy in recession this year.

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