UK Legal framework

ℹ️ UK AI White Paper

On 29 March 2023,the UK Government published “A Pro-Innovation Approach to AI Regulation” (AI White Paper) setting out its proposals for regulating the use of artificial intelligence (AI) in the United Kingdom.

The regulatory framework proposed in the White Paper is underpinned by five broad cross-sectoral key principles:

- a. Safety, security and robustness;
- b. Appropriate transparency and explainability;
- c. Fairness;
- d. Accountability and governance; and
- e. Contestability and redress.

Regulator-led approach

Unlike the draft EU’s AI Act, the UK Government does not aim to create a new AI legislation. Initially, the White Paper proposes that the five principles will be issued on a non-statutory basis. Instead of introducing a new far-reaching legislation to regulate AI in the United Kingdom, the UK Government is focusing on setting expectations for the development and use of AI alongside empowering existing regulators to issue guidance and regulate the use of AI within their remit.

The White Paper mentions generative AI only sparingly. However, there are three key takeaways relating to the use of generative AI:

1. The UK Government plans to clarify the relationship between intellectual property law and generative AI to provide confidence to users and businesses. In particular, the UK Government is working with users and rights holders on a [code of practice on copyright and AI](https://www.gov.uk/guidance/the-governments-code-of-practice-on-copyright-and-ai) .

2. Information Commissioner’s Office’s Guidance on AI and data protection (2023) describes how to comply with data protection laws when using AI.

3. [UK AI Standards Hub](https://aistandardshub.org/), which seeks to promote engagement with technical standards and AI assurance techniques.

ℹ️ LATEST UPDATES:

2 February 2024 The House of Lords Communications and Digital Committee published its first report of session 2023-24 on large language models (LLMs) and GenAI (see here an interactive summary) urged the government not to “sit on its hands while LLM developers exploit the work of rightsholders” and to end the copyright dispute “definitively” including through legislation if necessary. {under development}

6 February 2024 The UK Government issued a response to the consultation on A pro-innovation approach to AI regulation. {under development}

ℹ️ TDM exceptions - TIMELINE

• The current UK legislation already provides a copyright exception for TDM under s.29A of the Copyright, Designs and Patents Act 1988 (CDPA) for non-commercial research of copyright works to which a person already has lawful access.

-From October 2021 to January 2022 the UK Intellectual Property Office (IPO) ran a public consultation on Artificial Intelligence and IP.

• In June 2022, the UK IPO published a response to its consultation stating its intention to broaden the Text and Data Mining (TDM) copyright and database right exception which would allow text and data mining for any purpose (including a commercial one) without granting rights holders the ability to opt out.

• The proposed exception would have allowed commercial AI tools to be trained on all copyright-protected works without requiring a licence or compensating rightsholders, making the UK one of the most permissive places for AI research in the world. This received significant objection from rights holders, particularly within the creative industries, over loss of revenues under TDM licences.

• The introduction of an exception which allowed TDM for any purpose would have meant rights holders no longer being able to charge for UK licences for TDM of material that was already available legally.

• In February 2023, the UK Government u-turned on its plans and announced that these proposals were to be scrapped, after widespread criticism from rights holder groups.

  • On 15 March 2023, an entirely separate report of Sir Patrick Vallance on the Pro-innovation Regulation of Technologies Review proposed that the UK should “utilise existing protections of copyright and IP law on the output of AI”. However, the Government’s response did not explicitly mention providing copyright protection to AI-generated works but, instead, focused on infringement issues.

  • The Government’s also stated that,to provide clarity, the UK Intellectual Property Office will produce a code of practice by summer 2023. As such, the Government seems to be encouraging an industry-led approach to establish an official licensing framework, with legislation only to be brought in if this cannot be agreed.

  —> see the ongoing work on a code of practice on copyright and AI, as discussed above

  —> see the ongoing work on the regulatory sandbox for AI and the UK AI Standards Hub, as discussed above

  • In November 2023, the IP Federation signed a public statement urging the UK IPO to introduce a Code of Practice which is supportive of AI innovation. In the Open Statement, the IP Federation said (amongst other things) that: “In order to achieve the necessary scale, AI developers need to be able to use the data they have lawful access to, such as data that is made freely available to view on the open web or to which they already have access to by agreement.” And also that: “any restriction on the use of such data or disproportionate legal requirements will negatively impact on the development of AI, not only inhibiting the development of large-scale I the UK but exacerbating further pre-existing issues caused by unequal access to data”.  Signatories to the letter included a number of alliances from the education and research sector, software industry and organisations such as Creative Commons.