By Will Crook, Head of Policy and Communications, Publishers' Licensing Services – Platinum Sponsor of the University Press Redux Conference 2024.
On 24 July 2019, on his first day at 10 Downing Street, Dominic Cummings, the prime minister’s Chief Advisor, was pictured wearing an Open AI t-shirt. Although perhaps overlooked at the time, Dominic Cummings’ wardrobe choice reflected the UK government’s belief that AI was going to be the solution to a lot of the UK’s economic problems, such as low growth and poor productivity. With the aim of establishing the UK as an ‘AI superpower’ and an international home to AI innovation, the government published its AI strategy in 2021 and outlined what it would do to facilitate AI innovation. One area it turned to was copyright.
Copyright has always been a target when new technology is adopted that challenges its basic principles, or when those developing that technology complain it limits innovation. The problems caused by the adoption and use of the photocopier led to the creation, by publishers, of Publishers’ Licensing Services (or as it was then, the Publishers Licensing Society) in 1981 as a voluntary solution to put pressure on copyright. More recently, the 2011 Hargreaves Review into IP and innovation led to the introduction of the current copyright exception for non-commercial text and data mining (TDM). As it has done before, with AI looked upon as a crucial technology for future growth, the government looked at the copyright framework and how it could be changed to help AI developers, who complained that licensing copyright protected content was expensive, inconvenient and prohibitive to growth.
In 2022, after consulting on a range of potential options, the government announced it was to introduce a new copyright exception for TDM for any purpose with no ability for a rightsholder to opt out. The new exception would have drastically widened the current exception for TDM and would have weakened the UK’s copyright framework meaning that rightsholders would have no ability to consent to the use of their works in generative AI training or receive any renumeration. The response from the creative industries to the government’s decision was unanimous, with strong opposition across the whole sector from publishers, authors, visual artists and musicians. At the time, a creative industry colleague dryly commented that the government’s decision had done something almost unprecedented and had united the whole sector in agreement around one issue. Thankfully, the government heard that opposition and relented, scrapping the intention to introduce a new copyright exception in February 2023.
With the criticism of its previous approach in mind, the government decided to continue to look at the relationship between copyright and AI in a more balanced way. Towards the summer of 2023 the Intellectual Property Office arranged a working group comprised of rightsholder representatives and AI developers to meet for a series of roundtables to discuss the drafting of a voluntary code of practice for the use of copyright protected works in AI. However, talks were difficult with the government showing little direction on copyright and preferring to be an ‘honest broker’, and with trust damaged amongst the participants after the failed exception proposal coupled with the refusal of some AI participants to acknowledge the need to obtain a licence. These elements with the increasing amount of litigation in the US and UK by rightsholders against AI developers meant that the talks ultimately proved fruitless and work to develop the code of practice was brought to a halt by government in early 2024.
With an abandoned new copyright exception and a collapsed code of practice process, where will the government turn next?
In February 2024, the government announced that it would pursue a ministerial-led process and that details of further engagement were to be announced in due course, which so far has failed to materialise. Meanwhile, away from the executive, MPs and committees in both houses of parliament have been strongly supportive of rightsholders and copyright, and highly critical of the government. Baroness Stowell, Chair of the House of Lords Communications and Digital Committee recently wrote to the secretary of state complaining that the government’s lack of decisiveness and action to protect copyright had led to the deterioration of the framework and that time to act was running out before AI business models became ‘entrenched and normalised’. The government’s inaction is sharply reflected by progress being made in other jurisdictions on AI, such as the European Union that recently adopted its own AI Act that included provisions on transparency and adherence to copyright. Perhaps indicative of where the government find themselves on copyright and AI, in the House of Lords last week, the Minister for AI and IP, Viscount Camrose predicted that copyright would need to be modified through legislation to reach a solution but gave no details of what changes would be made. One thing, however, above all other matters, will likely intervene before anything is decided by the current administration: the next general election.
It is highly likely that the Labour Party will form the next government. Whilst it may be comforting to think that Labour may decide to take a stronger pro-creative industries copyright stance, the reality is that whoever the next IP minister is they will face the same scenario with some AI developers continuing to use content without permission and ignoring copyright. The new minister will be asked by officials to decide on a solution whilst under the same economic pressures of the current government. As focus turns to future policy, Labour has so far not given much away as to what it may choose to do. Labour’s recently published Creative Industries Sector Plan is positive about copyright but does not include detail as to how the UK’s framework would be protected or indeed strengthened in the face of pressure from AI developers.
All the while, as the above has been playing out in Westminster, publishers have used the time to strike licensing deals with AI developers. What was a nascent market is now developing, as publishers better understand the needs of AI developers and how their content is being copied and used in large language models and generative AI. Where medium and small publishers may be commercially disadvantaged in negotiations, collective licensing solutions are also being developed that offer publishers control and the ability to earn for the use of their content. These welcome developments weaken the government’s view of copyright’s relationship with AI ingestion as difficult and complex. If anything, it shows that clear opportunities to license exist for publishers and that AI developers are willing to obtain them to use the valuable, curated content they need for their models. If AI is to continue to innovate and become a trusted everyday tool at home and work, the government would be wise to remember that it also needs an economically sustainable publishing industry to continue to provide high quality, curated content in appropriate formats to fuel that innovation, with copyright again crucially providing the balance needed for that partnership to blossom.
About the author
Will joined PLS in December 2021 after working in Westminster for six years as a researcher for Andrew Bingham MP and for former Secretary of State for Culture, Media and Sport, Rt Hon John Whittingdale OBE MP. His main responsibilities are to engage with members of both houses in parliament on issues affecting copyright and licensing, to respond to relevant government consultations on behalf of PLS and ensure that PLS and mandating PLS publishers are updated on policy issues.
About Publishers’ Licensing Services
Publishers’ Licensing Services (PLS) has provided rights and licensing services to the publishing industry since 1981. A non-profit, owned and directed by the four main UK publishing trade associations, our primary role is to maximise the value of published content, enable its legitimate re-use, and protect copyright through effective secondary licensing, permissions, and rights management services. In 2023-2024 PLS collected and distributed more than £43 million to over 4,500 publishers.
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