Generative AI’s Effect on Copyright Law in England By: Nicholas Singlar

As we reach the midpoint of the 2020s, this decade is rapidly being defined by the unprecedented rise of generative artificial intelligence (AI).[1] AI equips computers and machines with capabilities that simulate human intelligence through learning, reasoning, and perception.[2] To use AI systems, a user prompts the model, which in turn can create text, images, audio, video, and other content.[3] Given this advancement, AI is in the early stages of revolutionizing various sectors, including banking, finance, marketing, healthcare, and transportation.[4] The AI industry reflects this revolution with its market size increasing from $70 billion in 2020 to $184 billion at the end of 2024.[5]Despite AI’s offerings, there is still a growing concern across the globe about AI’s impact on intellectual property.[6]

Within the realm of intellectual property law in the United Kingdom, exists copyright law.[7] The Copyright, Designs and Patents Act 1988 is the current governing law on copyrighted works.[8] This act extends copyright protection to literary, dramatic, musical, artistic works, sound recordings, broadcasts, films, and typographical arrangements of published editions.[9] To meet the threshold of copyright protection, a work must be regarded as original and must exhibit a degree of labor, skill, or judgment.[10] Moreover, the previous requirements are met, then copyright protection is granted automatically, as there is not a register of copyright works in the UK.[11] The author of the work may choose to mark it with the copyright symbol, ©, his/her name, and the year of creation.[12] However, marking the work does not affect the level of protection a work possesses.[13] Copyright protection in the UK prevents people from copying a given work, distributing copies of it, renting it, lending it, performing, showing, or playing the work in public, making an adaptation of your work, and putting it on the internet.[14] A violation of any of the rights listed above constitutes copyright infringement, which is a civil offense, but deliberate infringement of copyright on a commercial scale may result in a criminal offense.[15] However, it is still unclear to what extent protection is afforded to a work or the appropriate punishment due when a copyrighted work is used to train AI.[16]

This year, the UK government is attempting to launch a new consultation on plans to address complex issues that are arising from AI models being trained on copyrighted material.[17] Currently, as the race to build the most complex AI model continues, developers are showing little regard for any potential copyrights that may exist on any given training material.[18] For example, Meta has reportedly trained its generative AI model on more than 170,000 pirated and copyrighted books, resulting in a significant breach of copyrights.[19] Despite infringement concerns, the UK feels the uncertainty surrounding intellectual property is only hindering innovation and causing the UK to fall behind its European counterparts.[20] As a result, the UK is attempting to reform copyright law to favor AI companies through the AI Opportunities Action Plan and the Copyright and AI: Consultation.[21]

In addition to the AI Opportunities Action Plan which focuses on strengthening AI infrastructure and the regulatory framework to ensure the nation stays at the forefront of innovation, the open consultation of copyright and artificial intelligence released in December 2024 raises additional concerns for copyright holders.[22] Along with bolstering the infrastructure required to support widespread AI use, the government is exploring ways to expedite permissions for using copyrighted training data.[23] Furthermore, this would be achieved by expanding the permitted use of text and data mining to be used for commercial purposes as well.[24] Currently, the permitted scope of text and data mining is limited to non-commercial research.[25] However, this expansion would allow for training on all works to which the user has lawful access, including works available on the internet and those accessed through a valid subscription.[26] This expansion would still face limitations initiated by the copyright holder.[27] For example, a copyright holder may choose to reserve its rights, by opting out of the text and data mining exception or by requiring a license to use the copyrighted material.[28] If this expansion passes, the UK will be more aligned with the approach established in the EU.

Despite permitting copyright holders to “opt-out” of AI models training on their works, the text and data mining expansion has received strong opposition from creative industries.[29] Primarily, critics argue that the expansion should be based on an “opt-in” model requiring AI developers to obtain permission from rights holders before training on a copyrighted work.[30] Moreover, critics argue that placing the burden on the copyright owners to enforce their rights is unfair.[31] There are additional concerns regarding the effectiveness of an “opt-out” model with the presence of downstream copies.[32] For example, a rights holder could opt out of an AI model training on its work, but it would not be able to prevent the AI model training on downstream copies.[33] To adequately protect copyright holders, critics of the “opt-out” model argue an effective automatic content recognition system would be required for protecting copyrighted material.[34] However, there is no current model that exists, resulting in gaps existing in a framework intended to protect copyright holders.[35]

With comment still open for the consultation until February 25, 2025, it is unclear to what extent the UK will expand text and data mining.[36] The balance between fostering AI innovation and safeguarding copyright protections will be pivotal in shaping the future of intellectual property rights in the digital age.

[1] Gartner Experts Answer the Top Generative AI Questions for Your Enterprise, Gartner, https://www.gartner.com/en/topics/generative-ai.

[2] What is artificial intelligence (AI)?, IBM, https://www.ibm.com/topics/artificial-intelligence.

[3] Artificial Intelligence’s Use and Rapid Growth Highlight Its Possibilities and Perils, U.S. Gov. Accountability Off. (Sept. 6, 2023), https://www.gao.gov/blog/artificial-intelligences-use-and-rapid-growth-highlight-its-possibilities-and-perils.

[4] Rob Porter, AI Will Affect These Industries the Most in 2023, Vault (Mar. 7, 2023), https://vault.com/blogs/workplace-issues/ai-will-affect-these-industries-the-most-in-2023.

[5] Zach Naqvi, Artificial Intelligence, Copyright, and Copyright Infringement, 24 Marquette Intell. Prop. L. Rev. 16 (2020); Artificial Intelligence – Worldwide, Statista, https://www.statista.com/outlook/tmo/artificial-intelligence/worldwide.

[6] Artificial Intelligence’s Use and Rapid Growth Highlight Its Possibilities and Perils, supra note 3.

[7] Intellectual property and your work, Gov.UK, https://www.gov.uk/intellectual-property-an-overview.

[8] UK Copyright Law, UK Copyright Services (Aug. 2, 2022), https://copyrightservice.co.uk/_f/6517/3010/6979/edupack.pdf#:~:text=The%20current%20act%20is%20the,their%20material%20may%20be%20used..

[9] Id.

[10] Id.

[11] How copyright protects your work, Gov. UK, https://www.gov.uk/copyright#:~:text=You%20get%20copyright%20protection%20automatically,work%2C%20including%20illustration%20and%20photography.

[12] Id.

[13] Id.

[14] Id.

[15] Intellectual Property Office, Intellectual property crime and infringement, Gov.UK (Feb. 22, 2016), https://www.gov.uk/guidance/intellectual-property-crime-and-infringement#:~:text=Under%20civil%20law%20you%20may,a%20maximum%20of%2010%20years).

[16] Daniel Tencer, UK’s Plan to Make Copyright Law More AI-Friendly Raises Concerns, Music Business Worldwide (Jan. 14, 2025), https://www.musicbusinessworldwide.com/uks-plan-to-make-copyright-law-more-ai-friendly-raises-concerns/.

[17] Jennifer Cass and David Wagget, The UK’s new AI-copyright consultation: a path to clarity or controversy?, Dentons, (Jan 2, 2025) https://www.dentons.com/en/insights/articles/2025/january/2/the-uks-new-ai-copyright-consultation-a-path-to-clarity-or-controversy.

[18] Lauren Leffer, Your Personal Information is Probably Being Used to Train Generative AI Models, Sci. Am. (Oct. 19, 2023), https://www.scientificamerican.com/article/your-personal-information-is-probably-being-used-to-train-generative-ai-models/.

[19] Id.

[20] Tencer, supra note 16.

[21] Id.; Department for Science, Innovation & Technology, AI Opportunities Action Plan, Gov.UK (Jan. 13, 2025), https://www.gov.uk/government/publications/ai-opportunities-action-plan/ai-opportunities-action-plan.

[22] Id.; Cass and Wagget, supra note 17; UK Government launches AI Opportunities Action Plan, Mischcon de Reya, (Jan 14, 2025) https://www.mishcon.com/news/uk-government-launches-ai-opportunities-action-plan.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Edward Scott, Copyright and artificial intelligence: Impact on creative industries, UK Parliament (Jan 27, 2025), https://lordslibrary.parliament.uk/copyright-and-artificial-intelligence-impact-on-creative-industries/#:~:text=3.-,Initial%20responses%20to%20AI%20and%20copyright%20consultation,Richard%20Osman%20and%20Kate%20Mosse.

[30] Tencer, supra note 16.

[31] Id.

[32] Scott, supra note 29.

[33] Id.

[34] Id.