Artificial Infringement: Holding Back or Holding Out for the Win?

Governments worldwide are moving fast to update laws around artificial intelligence (AI).

From Denmark granting individuals copyright over their physical likeness to tackle deepfakes, and the US ruling that Meta using authors’ work to train its AI is fair use. It’s clear international leaders are experimenting to achieve an optimal legislative balance between ethics and innovation.

In comparison, the UK appears to be falling behind other nations, despite the PM pledging it will be a “world leader in AI”. The government, however, is open about ensuring its ‘pro-innovation’ approach to AI regulation is preserved, as referenced in section 1.4 of its AI Opportunities Action Plan. The UK’s approach may attract criticism for its perceived inaction, but its lighter-touch stance on AI regulation could, in fact, be the most pragmatic path forward.

The challenge of regulating a rapidly evolving technology

The rapid development of AI’s capabilities has made regulation a difficult feat. In addition to its fast-growing impact, the legal challenges that it could pose create uncertainty, particularly in terms of copyright infringement, as seen in the recent UK case of Getty Images suing Stability AI for using its images to train its system. This, however, does not mean that a rushed approach is the best approach when legislating. Regulation has the potential to either boost or stagnate AI innovation in the UK, so the strategy must be careful, pragmatic and considered. The government should look to establish a strong understanding of the opportunities, economic value and legal challenges in relation to AI, using this to build the foundation for any regulations or legislation.

Creative industries caught in the crossfire

Unregulated AI presents difficulties around protecting intellectual property which could have significant implications for creative industries, with the UK already seeing protest from creators who are concerned about its use. For example, this year’s #MakeitFair campaign saw the biggest media outlets in the UK, including the Times and the Guardian, using their front pages to come out in support of creators, with an aim to highlight that unregulated AI could damage the UK’s creative industries. In addition to this, there have and will continue to be legal concerns around data usage in AI, and the raft of ethical implications that this brings. This demonstrates the challenge of striking a delicate balance that supports AI developers and fosters innovation, whilst also ensuring creators feel confident enough to continue publishing their work.

Why is the UK taking a wait-and-see approach to AI regulation?

It’s in no doubt that the matter of regulating AI is a complex one, but governments which rush to regulate based on fears around these challenges risk having to re-legislate later down the line, after finding that their laws don’t have the intended effect. The UK’s decision to hold back on regulating means that, in the long-term, it could become a hotbed for AI innovation.

By taking a pause, the UK can monitor how AI’s capabilities are developing, while observing how other countries’ regulations have fared. This could include monitoring if and how the volume of litigation changes, whether the continuous and rapid development in AI slows down, and how the country’s economy and investment is impacted. Prematurely regulating or over-regulating could stagnate the growth of AI, removing many of the economic benefits for countries. The UK, however, already has the right mission in mind – to be a global AI enabler.

Early signals of legislative direction

Ultimately, it’s about the right timing and the right balance. The UK may be holding back, but that doesn’t mean it isn’t moving forward. Instead, it’s taking careful steps towards regulation, with one member of the UK government submitting proposals for the UK Artificial Intelligence (Regulation) Bill. Within this, there are a range of policies that clearly demonstrate the UK is not out of the loop with AI regulation. Key proposals of note include obligations for transparency in businesses when testing or using AI, obligations for businesses to appoint an AI officer to manage proper usage, and the potential development of a national governing body for AI to oversee regulation all of which will be useful in helping to regulate AI, without stifling its potential.

Copyright and data mining

As these proposals continue to be refined, and while the UK continues to observe other countries, it’s safe to say that the best and most likely starting point for legislation will be in relation to fair usage of copyright, which poses the most legal uncertainty at this time.

A key part of this will be addressing data mining regulations, and how these can be reformed to ensure the safe usage of data, but also to be as competitive as the EU’s regulations as set out in section 24 of the AI Opportunities Action Plan. The EU currently uses a general text and data mining exemption to give AI developers the freedom to innovate, whilst also providing rights to creators to opt-out from their work being used to train AI systems. When addressed in the UK, this will help to give both creators and businesses a clearer vision of fair use in AI, and it will be interesting to see how the government walks the tightrope of supporting both AI developers and the creative industry simultaneously.

Striking the right balance for the future

When regulatory measures begin to be passed, the UK government will need to create a space that allows for the ethical use of AI without undermining innovation. With the UK already being home to twice as many companies providing AI products and services than any other EU country, it is already on the route of becoming a global AI leader. This could be monumental for the economy, and so it’s vital that any regulation supports and stabilises AI usage, rather than hindering it.

As AI continues to reshape the legal and commercial landscape, businesses and creators alike must stay ahead of regulatory developments. Our multidisciplinary team is already advising clients on how to navigate the legal, ethical and commercial challenges posed by emerging AI technologies. If you’re looking to future-proof your business or understand how evolving AI regulation could impact your operations, we’re here to help.