Creative Industries: Rights Reservation Model

Lord Foster of Bath Excerpts

Thursday 30th January 2025 Grand Committee

Asked by

[Lord Foster of Bath]

To ask His Majesty’s Government what assessment they have made of the impact on creators and the creative industries of the rights reservation model proposed in their consultation paper “Copyright and Artificial Intelligence” published on 17 December 2024.

[Lord Foster of Bath (LD)]

My Lords, I begin by thanking the Minister for meeting me earlier in the week. I accept that he wants genuine consultation, although, as I will come to in a moment, the Government appear, in some aspects of the consultation, to have predetermined the direction of travel.

I accept that it seems somewhat odd to be returning to this issue so soon after Tuesday’s debate and the passing of the amendments of the noble Baroness, Lady Kidron, who deserves great praise for the work she has been doing. In my defence, I point out that I entered the ballot before the date had been set for Report stage of the Bill. Anyway, I am absolutely confident that we will need to keep returning to this issue many times, given the pace of development in AI. It is worth reflecting that on Tuesday evening, we were only just learning of the allegations by large AI firms that DeepSeek had been freeloading off their models to train its own model—an infringement, they claim, of their IP. How they have the gall to say that is beyond me, frankly, given that they have been responsible for the theft on a grand scale of the IP of UK creators.

I am not trying to join the debate retrospectively, but I must make my own position clear: the theft I have described must stop. I supported the noble Baroness’s amendments. The enormous success of our creative industries, much lauded on Tuesday, is in no small measure due to our gold standard IP regime, which has been the bedrock of growth, investment and innovation. We weaken it at our peril.

I want to make three things clear. First, this is not an IP v AI debate. The creative industries have been early adopters of AI and see the real benefits of its development. Indeed, they have been working with AI developers as fellow travellers. But if UK creators, many already poorly paid, are to earn even less because their IP is not remunerated, they will stop creating and so stop the flow of the high-class data needed for AI development. As Sir Paul McCartney said over the weekend,

“make sure you protect the creative thinkers, the creative artists, or you’re not going to have them”.

Secondly, I am unconvinced by arguments of legal uncertainty. Rather than sowing seeds of doubt, I would prefer to see the Government supporting the creative industries in upholding the law against unprecedented theft of their IP. As the noble Baroness, Lady Cavendish, said on Tuesday:

“This is not about balance”


between AI and IP,

“it is about implementing and upholding the rule of law ”.—[Official Report, 28/1/25; col. 167.]

But I also accept the need, as has frequently happened in the light of technological development, to update legislation, not least in terms of transparency and enforcement.

Thirdly, any updating should be based on detailed assessment of the implications. The question for this debate is:

“To ask His Majesty’s Government what assessment they have made of the impact on creators and the creative industries of the rights reservation model proposed in their”


AI consultation paper. Sadly, Tuesday’s debate made it clear that the answer is, little or none.

The creative industries’ own assessment argues that the Government’s proposed option of a text and data-mining exception will weaken our gold-standard IP regime. They argue that it could mean that AI companies, most of which are large US tech firms, can effectively take British creators’ work to train their models, profit from it and, in many cases, not repay the creator. Bizarrely, having circumvented the IP protection of others, the AI companies can get IP protection for their own creations.

But instead of rehashing the debate, I want to offer the Minister an opportunity to give reassurances to this Committee and the creative community that the Government are listening to the concerns, and to offer further comments that Members in another place will read before the Bill is debated there—where, incidentally, I hope we might see a shift in the Official Opposition’s position.

The Minister and his colleagues in the other place have been keen to reassure us that any new TDM exception with opt-out or rights reservation would be introduced only once a workable opt-out was found. He and his ministerial colleagues must therefore have some confidence that these systems are at least emerging, so what examples can he provide? To get to a stage of actively promoting a particular option for reform, one must assume that the Government have received assurances that, if that option is in place, AI developers will proactively enter licence agreements for content. Can the Minister say whether such assurances have been received?

Ministers have also accepted that different types of work will need different systems of opt-out. Is the thinking that there will be a phased approach to the introduction, as each different system is agreed? How could that possibly work? Will the Minister offer reassurance that this will not lead to different works having different levels of copyright protection?

The Government have said that any system must be workable. How will that be assessed? On Tuesday, the Minister in the other place said before the DCMS Committee that it would not be a decision just for Ministers; rather, it would be one for them and industry. Can the Minister shed some light on how such a decision on workability might be agreed, and, in particular, give a categorical assurance that rights holders will have a formal role in approval?

The Minister in the other place also talked about the need for ease and accessibility in any new system. The creative industries have argued that the Government’s preferred option would create huge bureaucratic burdens for artists, particularly independent artists and small music labels, who would end up wasting hundreds of hours on paperwork and translating legal jargon rather than, for example, making music or writing books. Can the Minister explain what “easy” and “accessible” look like?

On other areas of the consultation there is more widespread agreement about the need for updating legislation. For example, some AI developers have publicly claimed that they can use temporary copying exemptions as a legal basis for using data for model training without paying. Will the Minister confirm that this is not intended and will be clarified in law? There are strong arguments in favour of changes around metadata, with legislation prohibiting the stripping of rights reservation protocols to help better protect so-called floating content. Again, will such prohibitions be included in any changes to the law?

I know that the Minister agrees on the need for far greater transparency, and the consultation contains proposals to implement some form of transparency mechanism for AI developers to follow, but does he agree that, to be effective, it will need to be transparency that provides a granular level of detail of the works that have been ingested? Without it, there will be no way for those developers to prove compliance with any opt-out. Does he also agree that developers should be required to provide details of the crawlers they have used, coupled with an assurance that the crawlers have been designed to interpret and respect machine-readable rights reservation notices?

On enforcement, transparency will only help to provide evidence of compliance—or non-compliance—with the law. It will not offer a route for creators to receive any form of compensation for the misuse of their works. If those rights holders have to go to court to receive any compensation, how will that move us on from where we are today? Again, the Minister in the other place told the DCMS Committee that he did not think that accessing justice through the courts should be the preserve of deep-pocketed rights holders. I agree. Can the Minister suggest how the Government foresee rights holders being able to access justice, if not through the courts?

Finally, little has been said about how any new law will co-exist with the laws we have now. Will the Minister confirm that any existing infringement would have to be dealt with under existing law? There are understandable concerns among our talented UK creators. I hope that when he responds the Minister will acknowledge those concerns and, in some areas at least, provide some assurances, not least a willingness to reconsider the potentially hugely damaging proposal for a new text and data-mining exception. Without it, we risk sacrificing a known success story—the UK’s £124 billion creative industries—for a leap in the dark.