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AI and copyright - legislators slam UK Government’s vendor love-in

Chris Middleton Profile picture for user cmiddleton May 3, 2024
Summary:
The House of Lords’ Communications Committee urged decisiveness from the UK Government on the question of scraped copyright content. The response? A wistful gaze at powerful vendors.

IP
(pixabay)

A row has broken out in Westminster over the British government’s response - or lack of it - to critical aspects of the House of Lords’ inquiry into Large Language Models (see diginomica, passim). The argument concerns Downing Street’s unwillingness to engage with the vexed topic of copyright in the AI age.

The Chair of the Committee that carried out the Inquiry has written to the government this week and, effectively, accused it of siding with AI vendors by failing to protect rights-holding businesses, and by the lack of clarity in its own policy.

So, what’s going on? First, a reminder of the story so far.

Last year, the House of Lords’ Communications and Digital Committee conducted an in-depth Inquiry into LLMs and generative AI, quizzing vendors, lawyers, academics, industry bodies, and more, to expose the bare bones of the debate about creativity, investment, and AI’s business potential. In total, it heard evidence from 41 expert witnesses and scrutinized over 900 pages of written evidence.

The Committee published its findings in February. While upbeat, constructive, and welcoming of progress to date, the 93-page report pulled no punches on the subject of AI vendors scraping the Web to train LLMs and generative systems. 

Having heard from all sides of the argument - including AI providers, who told the Committee they sought to obey copyright rules (without saying from which jurisdiction) - the Lords were clear that copyright infringement had taken place, and accused the government of evading the need for clarity and foresight on the issue.

The February report said:

The government has a duty to act. It cannot sit on its hands for the next decade until sufficient case law has emerged [this referred to ongoing class actions and other copyright-holder lawsuits in the US and elsewhere].

LLMs may offer immense value to society. But that does not warrant the violation of copyright law or its underpinning principles. We do not believe it is fair for tech firms to use rightsholder data for commercial purposes without permission or compensation, and to gain vast financial rewards in the process.

There is no faulting the clarity of that statement. The Lords added:

In response to this report, the government should publish its view on whether copyright law provides sufficient protections to rightsholders, given recent advances in LLMs. If this identifies major uncertainty, the government should set out options for updating legislation to ensure copyright principles remain future proof and technologically neutral.

Some hope!

De facto endorsement 

In April, the UK Government responded to the Committee’s findings. Alas, for copyright holders, its comments suggested that it intends to sit on its hands for the foreseeable future. And that is despite estimates that the UK’s creative industries alone contributed £109 billion to the economy in 2021, rising to £126 billion in the following year. 

In total, IP of every kind contributes over 14% of gross added value, according to the government’s own figures. 

On 17 April, a letter to Committee Chair Baroness Stowell from Michelle Donelan, Secretary of State for the Department for Science, Innovation and Technology (DSIT), seemed designed to enrage its recipient. Donelan wrote:

The basic position under copyright law is that making copies of protected material will infringe copyright unless it is licensed, or an exception applies. However, this is a complex and challenging area, and the interpretation of copyright law and its application to AI models is disputed; both in the UK and internationally.

Baroness Stowell was well aware of this: it was one of the things the Inquiry was set up to take a view on. And it did: having heard from vendors, rights-holding industries, lawyers, and copyright experts - who backed IP-owners’ position - the Lords’ opinion could not have been clearer. Vendors had not behaved responsibly or fairly.

So, by saying these issues remain “disputed” is, implicitly, to side with those companies, and leave it to the courts - including those in the US, a different jurisdiction - to confirm or deny that view.

Donelan added:

The IPO [Intellectual Property Office] sought for rights holders and AI companies to come together and agree a way forward on the key issues. However, many of the issues relating to copyright and AI are challenging and the working group was not able to reach a consensus.

Again, Stowell was aware of this: it formed part of the Inquiry’s evidence. And the Committee expected the government to act and fill the policy vacuum. It is a government, after all.

Then Donelan added:

We are encouraged to see AI-driven tools being used to support creative processes, in areas such as video and film editing, music composition and generation, and virtual and augmented reality. We believe this demonstrates that it is possible for content owners and AI developers to create value for each other.

All of which ignores the fact that many such tools have been trained on copyrighted material - not to mention performers’ likenesses and voices, which is triggering further lawsuits in the US and elsewhere. By singling out AI in such contentious areas such as music, video, and film, the government is, therefore, implicitly endorsing those innovations, riding roughshod over copyright holders’ objections.

After what some might interpret as a cooling-off period, Baroness Stowell finally responded to Donelan’s letter this week. Despite the fortnight’s gap, she did not mince her words. 

In her 2 May letter, she wrote:

The government’s record on copyright is inadequate and deteriorating. We appreciate the technical and political complexities of the challenge. But we are not persuaded the government is investing enough creativity, resources, and senior political heft to address the problem. 

The contrast with other issues, notably AI safety, is stark. The government has allocated circa £400 million to a new AI Safety Institute, with high-level attention from the Prime Minister. 

On copyright, the government has set up and subsequently disbanded a failed series of roundtables led by the Intellectual Property Office. The commitment to ministerial engagement is helpful, but the next steps have been left unclear. While well intentioned, this is simply not enough.

She continued:

Your response acknowledges the purpose of copyright but declines to provide a clear view on whether the government supports the principle of applying this to LLMs, and whether the government is prepared to update legislation to put the matter beyond legal doubt. 

Indeed, it suggested that the government does not wish to comment in order to avoid prejudicing the outcome of ongoing legal cases. This contention is misguided and unconvincing. 

We appreciate that it is not government’s role to interpret the law or to comment on legal cases. But there is no suggestion that setting out your intention to address legal uncertainty would breach sub judice conventions. It is therefore difficult to escape the conclusion that the government is avoiding taking sides on a contentious topic. 

This trajectory is concerning. The issues with copyright are manifesting right now and problematic business models are fast becoming entrenched and

And, despite saying that the British Government was “avoiding taking sides”, she added:

“The government’s reticence to take meaningful action amounts to a de facto endorsement of tech firms’ practices. […] That reflects poorly on this government’s commitment to British businesses, fair play, and the equal application of the law.

Hear, hear.

My take

The Lords is sometimes accused of being stuffy, outmoded, privileged, and irrelevant. Yet it serves a valuable function in the modern world: holding the government to account, while offering a constant source of expertise and experience often lacking in many “here today, gone tomorrow” ministers (to quote the late British political commentator Robin Day). 

Having watched every hour of the LLM Inquiry in November, I can confirm that the Committee asked the right questions of the right people, listened to their responses, then took an informed, expert, and completely reasonable view of the facts.

So, it is sad that the Government’s Bletchley Park triste with powerful vendors last autumn sees policymakers fatally enamoured with their power and new money in the Spring. 

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