Why should photographers and image-makers be concerned about the newly proposed Text and Data Mining exception? 

• Up to this point, the UK’s copyright framework has arguably been among the most innovation-friendly and world-leading pieces of legislation protecting creators, with careful consideration for the significant and widespread creation of, and investment in, creative works, leading to an industry worth over 6% to the UK economy. 

• Photographers have always embraced and utilised new technologies and innovation, adapting from analogue to digital at speed to keep up with market demands, and these days using AI-assisted tools where needed. This proposed legislation is different. 

• Currently, the Text and Data Mining (TDM) exception (to copyright protection) permits non-commercial purpose machine analysis of online content, provided that there is lawful access (such as a subscription). It is also limited to prevent the resale or reuse for other purposes, and must be accompanied by acknowledgement of the source. 

• This new proposed Text and Data Mining exception for commercial purposes – by the UK government – undermines this by freely allowing the machine mining of all imagery published online for any use by anyone, including AI developers. It would cover both copyright works and those protected by the UK Database Right. 

• With serious economic consequences for any creator, but most especially photographers with data-rich images, this proposal completely short-circuits the licensing process allowing AI developers and others free commercial access to content for which, under normal circumstances, they would have to license and pay for. 

• On a practical level, it would mean that AI bots/crawlers would scan or read any digital images (much like many of the image infringement identification services we use already do), on your websites or social media accounts, and extract any data the bots have been programmed to search for (extracting both an image and the embedded metadata from the original source and any versions found elsewhere) at neural speeds. The bots would make copies for the AI platform in order to ‘learn’ from and, potentially, create new images. 

• Creators are doubly harmed in that not only is a potential revenue stream being removed but the very platforms being trained using their works may ultimately replace the work they currently do! Think e-Comm fashion on artificially-generated models or make-up on AI-rendered faces, much of which is already happening. 

• On the horizon are already AI/Machine Learning programmes that have openly copied millions of images to enable owners/users to create new ones without remunerating copyright owners. This change in UK legislation would fundamentally turn the tables on creators giving way to economically harmful competition by allowing a content ‘free for all’ and invoking an unfair machine-endeavour vs. human endeavour scenario. 

What happens next… 

– The UK government’s next step is to introduce proposed legislation with an economic impact assessment soon. 

– We need to show evidence of the economic harm this could do to AOP members, to mitigate the risk to your businesses. 

– We will be issuing a simple survey soon for all members to respond to – please do take part so we can protect your interests. 

Isabelle Doran, CEO and Nick Dunmur, Head of Business & Legal, The AOP – August 2022 

LINK TO SURVEY HERE