City lawyers have said a voluntary code of conduct for artificial intelligence (AI) was “always doomed to fail,” as the government has shelved plans to lay out rules on the training of AI models using copyrighted material.
An industry panel convened by the UK’s Intellectual Property Office (IPO) to draft a voluntary code of conduct has reached an impasse.
The IPO, tasked with copyright regulation, has been in talks with AI firms and rights holders to craft guidance for text and data mining used to create AI models like ChatGPT.
However, the AI companies and rights holders have been unable to reach an agreement, meaning the responsibility has fallen back in the lap of government officials at the Department for Science, Innovation, and Technology (DSIT).
“To expect AI companies to come up with a voluntary code of practice was always doomed to fail,” said Andana Streng, managing associate in Addleshaw Goddard’s intellectual property (IP) team.
She explained that achieving transparency over where training data comes from and how the AI model generates an output requires large amounts of financial investment and human oversight that could render the business models of some companies “unviable.”
“The bigger tech giants would probably be able to absorb these costs, but entrance to the market for the smaller players would be challenging,” Streng added.
Paul Joseph, IP partner at Linklaters, said the failure of the code of conduct so far “isn’t a surprise in that it was difficult to understand what the code was intended to achieve.”
“It’s unclear yet whether this is a blow to the creative industries specifically or whether it is a concern to both the creative and tech company stakeholders, given the current default position in the UK,” he said.
Aaron Cole, senior associate in the IP team at Ashurst, agreed that creating an AI code of conduct “is by no means a straightforward task”. It requires a “delicate balancing” between existing rights for creative industries and promoting innovation as the government vies to become a global AI superpower.
Content creators and rights holders are angry that tech companies are profiting from their work. In the US, the New York Times is suing OpenAI and Microsoft for copyright infringement and Cole warned cases like this could mount.
“It’s also important for developers to have greater clarity on how to train AI in a way that mitigates liability,” he said.
The UK’s current legal framework prohibits the copying of data for the purposes of training AI models for commercial purposes.
Last week, the Lords Communications and Digital Committee recommended that the government support copyright holders. This was welcomed by News Media Association chief executive Owen Meredith, who said he hopes the government will support content creators “by making clear the applicability of copyright law in this area.”
He added: “If necessary, where voluntary agreements are not possible, this should include setting out legislative options for future proofing our robust copyright regime.”
In 2022, the UK’s creative sectors contributed around 8 per cent of UK Gross Value Added, estimated to be worth around £170bn.
Lara Carmona, director of policy and engagement at Creative UK, said IP is the “bedrock” of the creative Industries because it is what drives income and value for their work.
“It must be protected – and given that the code of conduct approach has not worked in this instance, we urge the UK Government to make explicit its commitment to our existing copyright regime,” Carmona said.
A government spokesperson said: “The IPO has engaged with stakeholders as part of a working group with the aim of agreeing a voluntary code on AI and copyright.
“We will update on that work soon and continue to work closely with stakeholders to ensure the AI and creative industries continue to thrive together.
“The UK is a world leader in AI innovation and boasts a thriving creative industries sector, and we will continue to take a balanced and pragmatic approach which allows AI innovators and our world-leading creators to continue to flourish.”
The government is expected to imminently publish a white paper which will detail further plans for AI regulation in the UK.