UK Government launches consultation on AI and copyright

The UK Government has launched a long-awaited consultation on copyright law and artificial intelligence (AI), to address the complex issues surrounding AI model training.

This consultation, which is open until 25 February 2025, offers an opportunity for stakeholders to weigh in on how UK copyright law should apply to AI.

The aims of the consultation

The consultation specifically aims to strike a balance between AI development and the protection of copyright holders’ rights. The Government proposes expanding the existing Text and Data Mining (TDM) exception in the Copyright, Designs and Patents Act 1988 (CDPA) to allow commercial data mining, something that was previously only permissible for non-commercial research.

This expansion would facilitate AI training using large datasets, including works freely available on the internet or those to which users have lawful access through subscriptions.

However, under the new proposal, copyright holders would have the option to “reserve their rights” and opt out of this exception, effectively requiring AI developers to obtain a licence if they wish to use a rights holder’s work.

The Government’s plan aims to align the UK’s approach with that of the European Union’s Digital Single Market Copyright Directive (EU DSM Directive), allowing copyright holders to seek remuneration through licensing agreements while enabling AI developers to access and use copyrighted material more freely.

Transparency

A key feature of the consultation is the emphasis on transparency. The Government acknowledges that AI developers currently provide limited information about the sources of their training data, making it difficult for copyright holders to determine whether their works have been used and whether their rights have been infringed.

To address this, the Government is considering measures that would require AI developers to disclose the sources of their training materials, possibly through standardised, machine-readable formats, such as metadata or direct notification.

The consultation also explores the possibility of adopting new technical standards like Robots.txt or third-party “do not train” registries to help ensure that works not intended for AI training are excluded.

Another issue explored in the consultation is a proposal for mandatory labelling to distinguish between human and AI-created works, a measure that would enhance transparency and prevent misleading claims of authorship.

Copyright protection for computer-generated works

In addition, the Government is reconsidering the provisions in section 9(3) of the CDPA, which provides that computer-generated literary, dramatic, musical or artistic works without a human author are taken to be owned by the person who made “the arrangements necessary for the creation of the work to be undertaken”.

There is concern that AI-generated works contradict with the modern legal test for originality that a work must be an “author’s own intellectual creation”. This traditional notion of authorship is reflective of human qualities and creative expressions, and therefore section 9(3), in applying to works without a human author, seems contradictory.

The Government have noted this contradiction, questioning whether the provision of section 9(3) could ever apply in practice, stating that it is “unclear in the absence of case law how an “original” yet wholly machine-authored work would be defined”. Others argue that the protection of computer-generated works (CGWs) is to the detriment of human creation.

The consultation considers either:

• Maintaining the status quo, in order to encourage the adoption of AI tools by individuals and organisations;
• Clarifying the role of ‘originality’ in relation to the existing copyright protection of CGWs, subject to evidence that greater legal clarity is likely to encourage development or investment in generative AI services; or
• Removing this provision altogether, stating that the Government is not aware of any evidence that the presence of a CGWs provision has led to an increase in generated AI outputs.

The Government asks stakeholders:

• Whether they are in favour of removing copyright protections for CGWs without a human author;
• What the economic impact of removing these protections would be; and
• Whether it would affect them or their organisations.

The future of AI and copyright law

The proposals in the consultation represent a significant shift in how the UK Government seeks to regulate the relationship between AI and copyright.

By expanding the TDM exception for commercial use and introducing opt-out provisions for copyright holders, the Government is attempting to create a framework that encourages AI innovation while respecting the rights of creators. However, the proposals are not without critique.

For copyright holders, it could be argued that the opt-out proposal fails to adequately protect the value of their works, while AI developers may find the opt-out system burdensome and counterproductive, limiting their access to sufficient data for training.

The outcome of this consultation will likely shape the future of AI and copyright law in the UK, with far-reaching implications for innovation, creativity, and intellectual property rights. For further details or to submit feedback, you can access the full consultation here.

Elizabeth Withers is a Trainee Solicitor and Ryan Copeland is a Partner at Sharpe Pritchard LLP.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk.