29.11.2022: UK Music’s legal consultant Florian Koempel outlines the problems with the Government’s plans to allow technology firms to data mine the music of UK creators. 

UK Music has repeatedly warned of “dangerous and damaging” plans to allow artificial intelligence companies to “launder” music to generate new content.

The threat emerged following the publication of the Government’s response to its consultation, Artificial Intelligence and Intellectual Property: Copyright and Patents, which triggered fierce opposition right across the UK music industry, and the wider cultural industries.

UK Music says plans would allow third parties to copy creative works, including music, for data mining purposes, without the need to ask creators and rightsholders for permission.

It is calling on the Government to reject the current plan ahead of any proposed legislation to ensure that the basic principles, which are the bedrock of the UK music industry, are not undermined.

Here, UK Music’s legal consultant Florian Koempel explains some of the issues and risks contained in Government’s proposals on Artificial Intelligence (AI).

Q: What is all the fuss about?

A: The Intellectual Property Office (IPO) is proposing the introduction of a new copyright exception, which would allow the mining of text and data for any purpose, including copying music without permission, and without the option for writers and artists to opt out. Not only does this remove any opportunity for creators to get compensation for their creativity and talent, they will also not be able to prevent the abuse of their work by a computer.

Q: What’s the problem? Isn’t Artificial Intelligence a useful part of a modern economy?

A: Artificial intelligence is successfully applied in many sectors such as healthcare, defence, automotive, manufacturing and linguistics. Musicians, writers and artists, have been working with AI for decades, using AI applications such as LANDR as a tool for mastering, or performing a work written by an AI application such a IAMUS (“Hello World” performed by the LSO over 10 years ago). However, the Government’s plan to effectively allow AI firms to copy the work of UK creators to create new content is potentially very damaging for the music industry. It could enable wholesale copying of music without rewarding the creative talent. The Intellectual Property Office has yet to provide any evidence that such an exception would benefit the UK economy in general, and the promotion of AI in the UK specifically.

Q: Is the UK music industry against technological change and innovation?

A:  To the contrary, the UK creative sector has been at the cutting edge of innovation for decades now, in design, software, publishing, and music, often leading the world in this area. Our creative industries contribute over £116 billion to the UK economy. UK music specifically is a net exporter of our musical creativity, punching well above our weight internationally and leading the way when it comes to UK soft power overseas. It is a money maker for the UK economy; and, we the reputational benefit of the global recognition for our creative contribution to the world.

Q: Who would benefit from this proposed text and data mining exception?

A: Good question. Less than a handful of technology companies actually asked for such a wide exception during the consultation process (for what it’s worth, technology companies generally prefer an exception with opt out option for right holders, such as the European Union approach). I don’t see that such an exception would benefit the progress of AI in the UK. A wide-ranging text and data mining exception mainly benefits commercial research institutions who don’t want to pay license fees for using text and data in published articles. Nothing to do with AI, nor with music for this matter.

Such an exception opens the door for new companies copying our music and producing new music based on out creativity and talent without having to bother to ask for permission and reward the creative talent of thousands of writers and artists (and all the other creators involved in the music-making process). It would impact creative rights worth billions of pounds and damaging the competitiveness of our world-leading creative industries. As I said, research institutions and archives might be able to avoid paying license fees for using print works but this has nothing to do with artificial intelligence. On top of this, licensing options are available for text and data mining in the print sector, and the music industry has a good track record for providing specific licenses for new uses such as NFTs.

Q: Would there be any real damage if the rules changed?

A: Absolutely.  Make no mistake – musicians will see no financial reward and be left out of pocket under these damaging proposals. Creators will lose all control about the use of their creativity and talent. They will not be able to oppose the use of AI-generated works for purposes they do not agree with. In normal copyright contracts creators have the right of prior approval for, in particular, uses for politics or advertisement. They also want to ensure the quality of what has been done to the expression of their human creativity. That would not be the case here.

UK music attracts a considerable amount of inward investment given the strength of its copyright and enforcement regime. Reducing the value of the music through a new wide ranging exception is likely to make investors think twice where to put their money. It is an international market after all.

Q: Would this plan from the IPO infringe any international laws?

A: The IPO proposal infringes the internationally binding three-step test. This test restricts limitations and exceptions to special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. The three-step test is a mandatory part of all international copyright treaties, as well as the World Trade Organisation agreement. It is also fundamental part of our successful free trade agreements. Specifically, it is mandatory under the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) to which the United Kingdom wants to accede. Infringing the CPTPP even before accession would not look good.

Q: What is the situation in other countries?

A: The following countries are referred to by the UK Intellectual Property Office as examples of territories where exceptions are in place for text and data mining. In most cases they are not comparing like with like. This requires more research before any legislation is proposed.

• In the United States, the fair use exception does not cover copying for any purpose; it is more limited, for instance benefitting people with visual impairment.
• In Japan, the relevant exception for computerized data processing only covers minor exploitation, which is incidental to the process and its results, with express reference of the three-step test.
• Singapore is the only country providing a similar exception as the one proposed, but the UK is very different in size and importance when it comes to our creative sector. Most notably, Singapore has not become a global leader in Artificial Intelligence on the basis of this exception.

Q: But surely there would be some safeguards put in place for creators?

A: No, to the contrary. The Intellectual Property Office expressly rejected safeguards provided by other country’s in their law. For instance, Germany is providing its rightholders within an opt-out mechanism and places clear restrictions on the copies which can be made in the process.

Q: What is UK Music doing to protect the interests of creators?

A: As the collective voice of the music industry, UK Music has already written to the Culture Secretary calling on the Government to dump these plans, which would effectively allow AI companies to “launder” music to generate new content. It is continuing to work with its members to persuade the Government these flawed proposals would be deeply damaging to creators across the UK. We welcome the ongoing open discussions of the Intellectual Property Office with the music industry. We are looking forward to continue our cooperation with UK policy makers promoting our successful music industry globally.