Copyright and AI in the UK opting-in or opting-out?

The interface between copyright law and artificial intelligence (AI) is currently the object of global attention. The UK government’s recent public consultation on policy to ensure that ‘the UK’s legal framework for AI and copyright supports the UK creative industries and AI sector together’ is an example of this wider interest, as countries engage in a form of regulatory competition for the most attractive environment for AI development. The option endorsed by the UK government in the consultation document remains close to the EU model, proposing ‘a data mining exception which allows right holders to reserve their rights, supported by transparency measures’. We argue that this approach is a missed opportunity for a more straightforward innovation policy that avoids the problems of rights reservation. Opt-outs from training are difficult to implement technically, they increase costs and create barriers to market entry. Instead, we suggest that there should be much clearer scope for permitted research before market entry within the traditional opt-in framework (avoiding the EU split between commercial and non-commercial research). This should be combined with transparency obligations (triggering potential licensing) and an equitable remuneration provision that enables creatives (authors, artists, performers) to receive a share of licensing revenues negotiated between AI developers and intermediaries (publishers, producers). We review evidence on current licensing practices and consider related legal issues, including data protection, image rights and the sui generis database right.