In last week’s Gazette, there was an excellent article on intellectual property in the age of artificial intelligence. It included a summary of the government proposals under consultation for how copyright should be dealt with when copyrighted works are used to train AI models.
This is a topic of overwhelming importance – to the UK’s creative industries, but also to lawyers. Our websites and carefully produced analytical and explanatory materials are being scraped to feed a machine which will offer services in competition to us.
Indeed, the importance goes beyond specific sectors and affects all citizens: what kind of world do we want to live in? One where the bulk of content and images is mechanically produced by companies owned by a few US tech bros, or one where we consume products of human endeavour?
I will not repeat the technical arguments for or against the government’s proposals, which belong in the rarefied world of IP practice. But I will speak about the political developments which have overtaken discussion of the subject since the government published its consultation on 24 December, since this issue will finally be decided by politics and not by IP law.
First, on the domestic front, the Daily Mail has thrown its weight against what the government proposes. It is a surprising topic for the Mail to take an interest in (there is no reference in the consultation to Meghan Markle), but its recent front page was dominated by its new campaign: ‘Don’t let Big Tech steal UK’s creative genius’. It followed up with another front-page splash on big names in entertainment who stand in support.
The issue is whether tech firms can use copyrighted work to train AI models. The government favours the line that creators should be able to opt out of use of their material – in other words, if you don’t opt out, it gets used whether or not you know or care about it. Those arguing in favour of the Mail line think that creators should have to opt in for material to be used. The opters-in have powerful arguments.
Elton John and Simon Cowell back the Mail. The music industry in general has come out in a big way to support it. More are chipping in, too, with a growing view that AI is out to steal the UK’s crown jewels.
The government wants to balance innovation and its wish to lure big tech to the UK on the one hand, with the need to give protection to creators on the other. Will its carefully crafted proposals be able to survive the onslaught?
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Yet the local backlash is not the biggest threat. On 24 December, when the consultation was launched, the Trump presidency had not started. Even now, a month on, the full scale of its changes is being revealed on a daily basis, sending most of us reeling.
Trump stands for America First. And America First does not want big US tech companies to be regulated abroad, or to have foreign countries stand in the way of their absolute triumph. One of those very same big tech bros is Trump’s lead adviser. Indeed, some see Elon Musk as a co-president, and Musk has been very hostile to our government.
The other big tech bros paid their millions to Trump’s inauguration fund and were seated in symbolically important places at the inauguration. Vice president JD Vance has also been reported as tying US support for NATO to the EU respecting American values and free speech.
The message is clear: the US government will do what is necessary to have its way.
We in the UK are in an unfortunate position. Our tech systems are mostly US-developed and owned. The large AI models that will change our lives, whose training the government is seeking to regulate through its consultation, are predominantly US-developed and owned.
What may have seemed realistic for the government to launch in the dying days of the Biden presidency now seems fanciful. This is no longer an examination of the ins and outs of copyright law but rather a domestic battle over the protection of the UK’s creative industries, representing 5.7% of the UK economy in 2022, and for decades growing faster than the wider economy. It is also, more significantly, part of the wider geopolitical realignment of Europe, including the UK, with a bullying US.
We are always told to stand up to bullies. But we are so over-reliant on US systems for our everyday functioning in tech that it is difficult to know what standing up means.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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