Creative Industries: Rights Reservation Model

Lord Freyberg Excerpts

Thursday 30th January 2025 Grand Committee

[Lord Freyberg (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Holmes. I, too, thank the noble Lord, Lord Foster, for initiating this timely debate following Tuesday’s vote on the Data (Use and Access) Bill. As someone with a background in the visual arts and as an artist member of DACS, the Design and Artists Copyright Society, I speak with direct knowledge of these challenges.

The overwhelming majority of creators, whether visual artists, writers, actors or filmmakers, are freelance or self-employed. Recent research from The University of Glasgow’s Centre for Regulation of the Creative Economy reveals a stark crisis: visual artists now earn a median income of just £12,500, a devastating 47% collapse since 2010. Most creators must juggle multiple jobs to survive, and even successful artists are earning only £17,500 annually.

The proposed rights reservation model fundamentally undermines the viability of visual artists’ careers across the country. It does this through a dangerous inversion of copyright principles, principles that creators have long relied upon to secure royalties and safeguard their work. Instead of protecting creators’ existing rights, it imposes costly new burdens requiring them to actively defend protections historically held by default.

As the EU’s AI Act demonstrates, this approach faces insurmountable technical and legal barriers, creating a labyrinth that benefits neither creators nor users. Consider the practical impossibility of an artist enforcing a comprehensive opt-out in our interconnected digital age. Picture a scenario where a museum visitor photographs an opted-out artist’s work and shares it on social media. These platforms routinely permit AI training on user content, inadvertently exposing the artist’s work to the very AI systems they sought to avoid. The artist’s intended opt-out becomes meaningless within seconds of a single smartphone click. This forces creators into an impossible choice: accept unwanted AI training or demand photography bans, unravelling decades of progress in democratising art access.

In today’s digital marketplace, an artist’s online visibility is not merely advantageous but is essential for survival. Their digital presence serves as a virtual gallery, portfolio and business card combined connecting them with collectors, commissioners and collaborators worldwide. Yet the proposed opt-out system creates an impossible dilemma: how can artists protect their work from AI training without simultaneously vanishing from search engines and potential clients? The distinction between beneficial visibility and unwanted AI scraping becomes a technical impossibility. This challenge is compounded by the breakneck pace of technological change in AI development. Web-crawling technologies evolve almost daily, rendering today’s opt-out mechanisms obsolete tomorrow. More troubling still is the retrospective futility of such measures: countless AI models have already ingested vast archives of artists’ works.

At the heart of the visual arts sector lies not corporations but individuals: freelance artists navigating an already complex professional landscape. The opt-out system would drown these artists in administrative complexity, forcing them to master an ever-shifting maze of technical decisions while trying to create art. This crushing burden falls heaviest on those least equipped: individual creators lacking corporate infrastructure and legal expertise. The system presents a cruel paradox. Artists would need to become experts in rapidly evolving AI technologies just to protect their existing rights. They would be forced to make critical decisions about their creative futures under intense time pressure without adequate information or support. How can we expect individual creators to navigate this labyrinth while simultaneously maintaining their artistic practice and earning a living? The answer is simple: we cannot. This system would create an unsustainable burden that disproportionately impacts the most vulnerable members of our creative community.

Consider a professional photographer capturing thousands of images daily. Each photograph represents a separate copyrighted work, yet these images reside in cloud storage vulnerable to AI scraping. Under a rights reservation system, protecting each image becomes a Sisyphean task, turning a day’s creative output into weeks of administrative burden, as the noble Lords, Lord Black and Lord Foster, rightly highlighted. This inversion of creative priorities is fundamentally flawed. Instead of forcing artists to become full-time guardians of their intellectual property, our systems should empower creation and ensure fair compensation. Responsibility for respecting copyright should rest squarely with AI companies that seek commercially to exploit artists’ work, not with the creators themselves. We must reject any framework that transforms artists from creators into perpetual copyright administrators defending their rights against technological encroachment.

The amendments to the data Bill proposed by the noble Baroness, Lady Kidron, chart the only viable path forward, one that brings fair value and legal certainty to creative industries and tech sectors alike. This Government must not succumb to pressure from US-based tech companies peddling the false promise that gutting copyright protection will somehow enrich Britain.