Copyright | Kate McCalmont-Woods

I’ve just been watching ‘Sunday with Laura Kuenssberg’ and one of her guests was Baroness Beeban Kidron, a former film director who was appointed as a crossbench peer. She specialises in protecting children’s rights in the digital world, and is an authority on digital regulation and accountability.

The topic of conversation was Labour’s plan to change copyright law so that tech companies can scrape copyrighted work from the internet to train their generative AI tools free of charge, unless individual creatives decide to opt out. They are proposing what is, in essence, legalised theft.

Labour launched their AI Opportunities Action Plan two weeks ago. They intend that the UK should become a world leader in AI with the amount of computing power under public control being increased 20 times over by 2030. They will achieve this by making huge investments (£14bn provided by tech companies, of course!) in setting up the infrastructure needed to create AI growth zones, a ‘super computer’ as well as huge energy intensive data centres necessary to support it. Clearly this will have a significant environmental impact and is at odds with Labour’s election promise to hit its green target to create a clean power system by the same date of 2030, which some experts think was going to be difficult to meet anyway.

Apparently, this will result in the UK’s economy being boosted by £470bn over the next 10 years. This may well turn out to be Starmer’s figure on the side of the bus. Kidron commented that the small print reveals that the figure was sourced from a tech lobbying group which was paid for Google and which was arrived at by asking generative AI, and which, in any event, reflects the global, not the national, uplift in the economy.

Kidron is a vocal supporter of the option to opt-in rather than putting the onus on the individual creative to contact each of the AI companies, who are using their work, to opt out. In fact, opting-out is something that’s not technically possible to do at the moment. To this end, she has put forward amendments to the Data (Use and Access) Bill which will be debated in the House of Lords this week. She has also previously commented in the press that she can’t think of another situation in which someone who is protected by law must actively wrap it around themselves on an individual basis. I think she makes a good point, and I agree with her view that the solution is to review the copyright laws and make them fit for purpose in an AI age. The creative sector, which includes artists, photographers, musicians, writers, journalists, and anyone else who creates original content, is made up of about 2.4 million people and is hugely important to the country’s economy, generating £126bn. That money should be kept within the economy, and not be siphoned off to Silicon Valley.

Not surprisingly there has been a great deal of backlash from creatives including actors and musicians, such as Kate Bush and Sir Paul McCartney, since Labour announced their plans. As part of the segment, Kuenssberg interviewed McCartney who is very concerned as to the effect this will have, especially on young up and coming artists. He commented that art is not just about the ‘muse’ but is about earning an income which allows the artist to keep on creating. He fears that people will just stop creating because they won’t own what they create, and someone else will profit from it. AI is also a positive thing: he explained that they used it to clean up John Lennon’s voice from a scratchy cassette recording making it sound like he only recorded it yesterday, but he is, nevertheless, concerned by its ability to ‘rip off’ artists. He mentioned that there is a recording of him singing ‘God Only Knows’ by the Beach Boys. He never recorded the track; it was created by AI. He can tell it doesn’t quite sound like him, but a normal bystander wouldn’t be able to tell the difference. In a year’s time, even he won’t be able to tell the difference.

There is a petition which has been signed by over 40,000 creatives, and the Government is undergoing a consultation procedure which you can respond to with your comments online here. The consultation ends on 25th February.

So, what can we do in the meantime?

Short of going offline, which isn’t really an option, there is nothing which will ensure that our work is not used in training generative AI. Just from some cursory research, which incidentally was helpfully summarised by Google’s AI Overview, there is the possibility of using a watermark to protect images either physically (not so good for promoting work) or invisibly embedded in the image, using digital signatures, or a cloaking app such as Glaze, which was developed by the University of Chicago, which confuses the way AI sees your image by altering the pixels, or by using another of their apps, Nightshade, which alters the match between image and descriptive text.

For now, all I can do is to change my privacy settings on my Facebook and Instagram accounts to prevent Meta from being able to use data from my posts to train its own AI tools. I had to fill in a form explaining why I objected to them using the data, and I received email confirmation that they would honour my objection, but who’s to know if they do or not? Apparently, there is a website, Have I Been Trained?, which allows you to search for your work in the most popular AI image dataset, LAION-5B.

What’s possibly just as disturbing is the Government’s plan to allow big tech access to one of the biggest and comprehensive datasets in the world – the NHS. It’s all in one place, we all have an NHS number which gives access to a lifetime’s history of personal and health data. It will be done on an anonymous basis, but with enough data, even experts say it’s easy to re-identify people. No-one’s doubting the incredible possibilities that AI offers in terms of delivering healthcare, but proper safeguards are needed.

Anyway, I asked the WordPress AI to generate a header image based on its own prompt:

“Create a high-resolution, highly detailed image illustrating the theme of digital rights and AI regulation. Feature Baroness Beeban Kidron in a thoughtful pose, surrounded by symbols of creativity such as art supplies, musical instruments, and books. The backdrop should convey a digital landscape, with elements representing technology and copyright, like binary code and padlocks. Use soft, natural light to evoke a sense of seriousness, yet hopefulness. The image should be in a documentary style, capturing the urgency of the conversation about protecting creatives’ rights in the age of AI. Ensure sharp focus to highlight the intricate details in each element.”

Sorry, Jonathan – I will switch my mobile phone off for the rest of the day so I don’t have to recharge the battery, but, in the meantime, do we have much to worry about? It doesn’t even look like Beeban Kidron.

In our session this week we looked at AI image generation, in particular, how the tools are trained by using a huge number of datasets created by scraping data from the internet; the impact of this form of training including bias and breach of IP rights; its ethical and environmental impact; and the effect on us, as artists, in terms of our own relevance, the potential use of our work as training input, and our ability to use AI to create output in our artistic practice.

It is astonishing how quickly this area is developing. However, until it reaches a stage whereby AI can create an image in which there is human emotion and imperfection, we probably won’t become obsolete just yet.

Being from a legal background, I was particularly interested in the issues that generative AI tools have thrown up in terms of intellectual property rights. The main issues seem to be the potential breach of copyright in both the collection of data for training, and the output created, as well as the question as to who owns the output and whether it should itself be protected by copyright.

The problem with data scraping is that whilst the data is widely available in the public domain, this doesn’t mean that it can be copied and used without limitation (in the UK the only current exception to copyright protection in respect of text and data mining is for non-commercial research). This could mean that any images of artwork which I have produced, and which are publicly available on the internet, could be used to train generative AI and, consequently, could possibly form part of an output image generated by a third party, despite the copyright in the original image belonging to me. It’s a contentious issue, and there is lots of litigation going on at the moment across numerous jurisdictions including the UK and the US. In the UK, Getty Images has taken action against Stability AI for using millions of Getty Images to train its Stable Diffusion tool. Claims have similarly been made in the US against Meta, Midjourney and Anthropic, amongst others.

Another related issue, is that generative AI platforms will generally reserve the right to use any input or prompts from users to improve the performance of the tool, which could have implications in terms of privacy and confidential information.

Whilst it is unlikely that generative AI will create images which are exact reproductions of copyrighted images which have been used for training or as input, should there be sufficient similarity, there may be a potential breach of IP, but this will depend on an assessment being made in each case. It will also depend on being able to pinpoint where the content has come from, bearing in mind the huge number of resources across many jurisdictions. As part of their case with Getty Images, Stability AI are relying on the defence of fair dealing, as well as that of parody, caricature and pastiche i.e. that the image generated is not a replacement for the original image but a pastiche, and so it does not affect the market for the original image or its value. It probably didn’t help that in this case that some of the output images contained parts of the Getty Images watermark. This case is destined to be a trailblazer, but we won’t know the outcome until the middle of next year.

It is theoretically possible that an image created by prompts and inputs from a user of generative AI is capable of being owned by the user. However, the user cannot assume that they own the content or that they are able to use it as they wish. Firstly, who is the owner of the created image varies from country to country. Secondly, the terms and conditions of the platform may determine ownership and rights e.g. Midjourney’s terms and conditions, whilst providing that the user owns the created image, state that by using the service, the user grants Midjourney and all its affiliates etc. extensive rights in relation to the output image to reproduce and sub-license it etc. at no charge, and royalty free.

In the UK, the author of original literary, dramatic, musical or artistic work owns the copyright in that work, unless it was created in the course of employment or by way of commission. There is no need for registration in order for the work to be protected, unlike in the US where it has to be registered with the Copyright Office. In fact, the UK is one of the few countries which recognise copyright protection for computer generated works. However, for the work to be original it must be the author’s intellectual creation and reflect their personality. It is not clear how this might be applied in the context of work created by AI. Furthermore, the ‘author’ is the person by whom the necessary arrangements for the creation of the work are undertaken. So, who is that? The user who specifies the prompts, or the person who created the AI tool? This issue is likely to be decided on the facts of each case, including the T&Cs of the platform.

It’s all very much up in the air, and destined to become even more complicated, the more sophisticated generative AI becomes. For the time being, as artists it would be a good idea to take the precaution of reading the small print of the platform being used, keeping detailed records of the process being used including all the prompts in response to which the image was generated.

Whilst writing this post, I noticed the WordPress AI Assistant. It created the image at the top of this post after generating the following prompt based on the contents.

I’ll finish with Alan Turing’s warning which he gave in a lecture in 1951:

” Once the machine thinking method had started, it would not take long to outstrip our feeble powers. At some stage, therefore, we should have to expect the machines to take control.”