How UK Is Grappling With Copyright Issues In AI

• To what extent does training an AI model by feeding copyright works into it, infringe the rights of copyright owners?
• Is the generated output of the AI an infringement if it is based on an earlier copyright work?
• Is the AI model itself an “infringing article” once it is trained on copyright works, in the way that a book containing unlicensed reproductions of pictures would be an infringing article?
• If the AI generated output is a copyright infringement, who is liable for that infringement? Is it the “prompt engineer” who requested the output? Is it the developer of the AI or whoever trained it? 
• If there is an infringement, are there any applicable exceptions or defenses that might apply?

The training of AI by exposing it to copyright works necessitates reproduction by the AI of those works, by copying them into the model. Whether that form of reproduction is permitted will broadly depend on the source of the works. It will also depend on whether one of the statutory exceptions from infringement applies. UK copyright law contains a limited exception for the creation of temporary copies as part of a technical process, although the copies made by the AI are unlikely to be temporary if it is to remember the work.
The UK government has announced an intention to legislate to clarify the scope of this exemption in the context of AI training. Further, there is an exception for “text and data mining” that allows the extraction and reproduction of copyright works, but only under certain, limited circumstances. In particular, the data mining must be for non-commercial research.
The previous UK government proposed widening the text-and-data mining exception to bolster the tech industry. It met resistance from the UK’s creative industries who were less keen to see their work exploited in this way and the proposal was shelved. However, the idea is now back on the table.
The present government published a consultation in December 2024 on the reform of copyright law, including a proposal to allow text-and-data mining exemption for commercial, as well as non-commercial, purposes. This would be similar to the exception already in place in the European Union. Like the EU regime, rights-holders would have a right to prevent text-and-data mining of their work by reserving their rights. Further, AI developers would be required to be more transparent around their use of existing works for training, although the level of detail that they will be required to disclose is not yet known.
Whether or not the exceptions for temporary copying or for text-and-data mining apply to the input, those exceptions will not in any event apply to the output of the generative AI. Under UK law, an article that copies the whole or a “substantial part” of an original copyright work will infringe. The test is not whether a substantial part of the new work replicates the earlier work, but the degree to which the original has been copied.
It is therefore quite possible that an AI will reproduce a substantial part of one or more original copyright works when generating a new work in response to an AI software user’s prompt.
Is it possible that the generative output could benefit from one of the fair dealing defenses under UK law? To qualify for the defense of fair dealing, the use must fall within one of the purposes specified in the Copyright Designs and Patents Act of 1988 before there is any consideration of fairness. The permitted purposes are specific and limited, and some come with conditions attached. For example, certain fair dealing purposes require that a sufficient acknowledgment is given to the original source.
If an appropriate fair dealing purpose is identified, the use of the original work must still be fair in all the circumstances. The UK court would consider various factors to determine fairness, including the amount of the work used and the impact on the rights holder.
Fair dealing purposes include research and private study, criticism and review, and news reporting. However, the fair dealing purposes that are most relevant (and debated) when it comes to generative AI are quotation, parody, pastiche and caricature. Does the output from generative AI quote from the source material? Is it a parody of the original? Or perhaps a pastiche of someone’s work?
There have been very few decided cases on the meaning of “parody” for fair dealing purposes and even fewer for “pastiche,” which is likely to be the purpose most relevant to generative AI produced “in the style of” a particular author or artist.
This may soon change due to the rash of AI related copyright infringement cases currently working their way through the courts. One of the most keenly followed is a Getty Images’ lawsuit against Stability AI in the High Court of Justice in London. Getty Images (US) Inc. v. Stability AI Ltd., IL-2023-000007. Getty Images accuses Stability AI of infringing copyright in Getty’s content, both because the content was used to train stable-diffusion, image-generating AI, and because the outputs from that system are alleged to infringe Getty Images’ rights.
Getty Images has pointed out that in some images generated by the AI, their watermark (being their brand names added to images to deter copying) has been reproduced. Amongst other defenses, Stability AI argues that the training activities did not occur in the UK, and that the generated images are a pastiche and fall within the UK’s fair dealing exception.
Under UK law, AI developers could potentially be liable as secondary infringers, accessories/joint tortfeasors or primary infringers in relation to the output of a generative AI. The person who writes the prompts that leads to the output being generated could also be liable, particularly if the prompt in some way directed the AI to copy an existing work. For example, by asking it to produce something similar to or “in the style of” the original work. 
Notably, Dall-E, an image generating AI, will not reproduce images in the style of a living artist. Further, OpenAI, the company that built both Dall-E and ChatGPT, also allows artists and copyright owners to direct that their works are removed from training.
The judgment in the Getty Images trial will be hugely important, but with the trial not expected before the summer, a final judgment (particularly if the case is appealed) is some way off. In the meantime, there remains an uncertainty around whether the development and use of generative AI infringes the copyright in input works.
The UK government’s consultation on the introduction of a broader text-and-data mining exception seeks to address this. Although their preferred solution is to increase freedom to operate for AI developers by widening the exception, the consultation acknowledges that this is not the only possible solution. An alternative to a broader exception would be to tip the scales in the other direction; to strengthen copyright law, making it clear that an express license is required to use a copyright work for training AI.
If the government’s proposed text-and-data mining exception does not become law, or if it does not go far enough to shield AI developers and users from copyright infringement, then licensing indeed would be the way forward, either individually or collectively. The latter would involve a statutory licensing regime under which AI developers could obtain a license to use copyright works on payment of a fee or royalties to a collecting society.
But would collective licensing work on an opt-in or opt-out model? If it was the latter (as is proposed for the expanded text-and-data mining exception), any copyright work could be used by the AI unless the owner has opted out. This is being resisted by the creative community, particularly given the administrative burden it would place on rights owners.
How to make opt-outs work effectively is an issue discussed in the government’s current consultation, particularly as there is some uncertainty over how rightsholders effectively reserve their rights under the equivalent text-and-data mining exception in EU law.

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