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.

Data (Use and Access) Bill [HL]

Lord Freyberg Excerpts

Report stage
Tuesday 28th January 2025 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, this topic understandably arouses a lot of emotion, but it is a difficult one to resolve satisfactorily. The Communications and Digital Committee has examined the challenge of copyright in an AI world from several angles over the last couple of years, and our conclusion as a result of that work is that the tech and creative industries need to find a mutually beneficial way forward on copyright because, in this new world, they are relying on each other to succeed. The AI models and services that the tech platforms are building for consumer and commercial use, such as Chat GPT, Claude, Llama, Grok and others yet to emerge, have an insatiable and ongoing appetite for new, quality data and original content, and it is a continual supply of that content which will make them yet more sophisticated, and how each platform operator will compete in the race to dominate. What I have just described is also why the Government should not pursue copyright laws that primarily benefit foreign tech firms that are prepared to pay vast sums for energy, computing facilities and staff, but not, as we have heard, for data.

During our inquiry on large language models, we heard contrasting interpretations of existing copyright law. Our view is that the application of copyright law in the context of AI is complex, but the principles remain clear. What is needed is a framework that aligns incentives between content creators and AI firms to help them strike mutually beneficial deals. In our reports, we have called for that framework to include: a transparency mechanism to allow rights holders to check for infringements; much better technical and legal enforceability; and measures to support a new market in responsible AI training data.

I am pleased to say that the amendments in this group from the noble Baroness, Lady Kidron, and my noble friend Lord Camrose, reflect these objectives, but I would like to make some further comments on the way forward. While the Communications and Digital Committee has welcomed the Government’s copyright consultation as a step forward in making progress on this issue, we have cautioned strongly against adopting a flawed opt-out regime comparable to the version operating in the EU. Indeed, Matt Clifford’s recommendation that we adopt that EU model is the only part of his excellent AI Opportunities Action Plan that I disagree with.

That said, ensuring the UK remains competitive in this global market is vital, and some might argue, contrary to what the noble Baroness has said, that the arrival of DeepSeek brings that into sharper focus. It is why I suspect the Government prefer an opt-out model. What we as a committee argue is that if, after their consultation, the Government decide to go ahead with an opt-out model, it must include the transparency, technical and stronger enforcement mechanisms I have already outlined and that are reflected in these amendments. What is important therefore to understand is that the amendments in this group could apply to an opt-in or opt-out model; they are flexible.

Whichever route the Government take, it is essential that, alongside the creative industries that we have heard are so important to our economy and society, the conditions are set for our domestic AI tech sector to scale and compete. UK spin-out and start-up innovators can seriously challenge existing dominant tech firms with specialist AI models and new services and applications. Not only must our copyright regime not be a barrier to entry for UK start-ups seeking to scale but the UK needs a workable framework to incentivise a dynamic licensing market to promote and seize the economic value of the high-quality data this nation holds. That could make this country an attractive AI training destination for all AI models.

Sorting all this out is urgent, and it is not easy. I worry that if we do not resolve it soon, the UK will be defined by our concerns about copyright to our detriment in the AI global race. The Government cannot wait for the courts to find a way forward; they must act swiftly once the consultation is over. This Bill is the right vehicle for doing so, and because it is what we call a Lords starter, it is yet to go through all the Commons stages; we are at the start of this process, and the Government have time.

For all the reasons I have outlined, if the noble Baroness divides the House, I will support her in voting for these amendments.

[Lord Freyberg (CB)]

My Lords, as one of the supporters of these amendments, I support the amendment so expertly moved by the noble Baroness, Lady Kidron. I declare my interest as someone with a long-standing background in the visual arts and as an artist member of DACS, the Design and Artists Copyright Society.

I thought it would be helpful to highlight and focus on just one element of the noble Baroness’s speech, specifically the issue of transparency. Here, there is a theme developing throughout the House on this issue. One of the biggest obstacles to ensuring fair pay for creators is that AI companies have not been transparent about what works. They have been used for training AI models. Tech companies have rebuffed transparency measures because they say that this will reveal trade secrets. While I understand that business need, it cannot come at the expense of creators. There is a way in which to make transparency measures work for both business and creators, giving access to creator representatives about the use of their work on a confidential basis to facilitate copyright licensing.

This is, after all, what data rights have done for millions of people, giving them the agency to know when their data has been used. It is entirely reasonable and possible for transparency measures to be upheld and properly enforced. Therefore, considering the significance of this issue, I should be very grateful if the Minister will confirm that transparency measures proposed in the copyright and AI consultation will not be conditional on a reservation rights system.

[The Earl of Clancarty (CB)]

My Lords, I rise briefly in support of my noble friend Lady Kidron’s important amendments. I declare an interest as a visual artist.

I want to pick up on the language that Rachel Reeves used in conversation with Laura Kuenssberg in her Sunday programme, when she talked about getting the balance right. It needs to be emphasised that it is not a question of balance between the tech companies and the creative industries but a question about the use of data, and the consideration of the origin of that data should be central to a Bill about access to data. That is critical. It is perhaps ironic that at the heart of this there is a void, which is the lack of data about data, as my noble friend Lord Colville showed clearly in his speech. The creative industries themselves successfully use AI. As Paul McCartney pointed out in the same Laura Kuenssberg programme, in his case he did so by actively seeking and obtaining permission for the use of data, as everyone should. These amendments are wholly reasonable and do what the creative industries are asking for. If the Government do not accept them, I shall certainly vote for them.

Data (Use and Access) Bill [HL]

Lord Freyberg Excerpts

Report stage
Tuesday 28th January 2025 Lords Chamber

[The Earl of Clancarty (CB)]

My Lords, I added my name to the amendment in the name of the noble Lord, Lord Bassam, and I, too, thank the Minister for the constructive meeting we had about the smart fund. While the creative industries are hugely important to this country, as was made clear in an earlier debate, artists’ earnings have suffered a real battering. As the noble Lord, Lord Bassam, said, the Authors’ Licensing and Collecting Society reported that authors earning all their income from writing decreased from 40% in 2006 to 19% in 2022, and performers and visual artists have comparable concerns about their earnings. The smart fund would provide a useful additional—I emphasise “additional”—means of funding in terms of fair recompense for creators.

The smart fund would be managed by established copyright societies, which have a track record of fair payment to creators, regulated by the Collective Management of Copyright (EU Directive) Regulations 2016. So that infrastructure, to a great extent, already exists. European schemes successfully provide royalties to UK rights holders. However, as acknowledged by the Government, this is under threat due to Brexit and alignment with such schemes would be extremely helpful.

I understand that discussions between DACS, the IPO and the Government have now opened up, and these discussions need to include DCMS. I say to the Minister that it would be helpful if Chris Bryant were made aware of what is said in this debate. This scheme could be introduced at little or no cost, which would be a win-win for everybody. Finally, I thank DACS and the ALCS for their briefings for this debate.

[Lord Freyberg (CB)]

I support the amendment, to which I have attached my name, along with the noble Lord, Lord Bassam, and the noble Earl, Lord Clancarty. I declare my interest as a member of DACS, the Design and Artists Copyright Society, and I, too, thank the Minister for meeting us prior to this debate.

Today’s digital landscape presents unique and pressing challenges for visual artists that we can no longer ignore. A 2022 YouGov survey commissioned by DACS uncovered a revealing paradox in our digital culture. While 75% of people regularly access cultural content at least three times a week, with 63% downloading it for free, an overwhelming 72% of the same respondents actively support compensating artists for digital sharing of their work. These figures paint a stark picture of the disconnect between the public’s consumption habits and their ethical convictions about fair compensation.

The Netherlands offers a compelling blueprint for change through DACS’ partner organisation Pictoright. Its innovative private copying scheme has successfully adapted to modern consumption habits while protecting artists’ interests. Consider a common scenario in museums: visitors now routinely photograph artworks instead of purchasing traditional postcards. Under Pictoright’s system, artists receive fair compensation for these digital captures, demonstrating that we can embrace the convenience of digital access without sacrificing creators’ right to earn from their work. This proven model shows that the tension between accessibility and fair compensation is not insurmountable.

The smart fund offers a similar balanced solution for the UK. This approach would protect our cultural ecosystem while serving the interests of creators, platforms and the public alike. I hope the Government will look favourably upon this scheme.

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Lord, Lord Bassam, for retabling his Committee amendment, which we did not manage to discuss. Sadly, it always appears to be discussed rather late in the evening, but I think that the time has come for this concept and I am glad that the Government are willing to explore it.

I will make two points. Many countries worldwide, including in the EU, have their own version of the smart fund to reward creators and performers for the private copy and use of their works and performances. Our own CMS Select Committee found that, despite the creative industries’ economic contribution—about which many noble Lords have talked—many skilled and successful professional creators are struggling to make a living from their work. The committee recommended that

“the Government work with the UK’s creative industries to introduce a statutory private copying scheme”.

This has a respectable provenance and is very much wanted by the collecting societies ALCS, BECS, Directors UK and DACS. Their letter said that the scheme could generate £250 million to £300 million a year for creatives, at no cost to the Government or to the taxpayer. What is not to like? They say that similar schemes are already in place in 45 countries globally, including most of Europe, and many of them include an additional contribution to public cultural funding. That could be totally game-changing. I very much hope that there is a fair wind behind this proposal.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

I have signed Amendment 58. I also support the other amendment spoken to by the noble Baroness, although I did not get around to signing it. They both speak to the same questions, some of which have been touched on by both previous speakers.

My route into this was perhaps a little less analytic. I used to worry about the comment lots of people used to make, wittily, that data was the new oil, without really thinking about what that meant or what it could mean. It began to settle in my mind that, if indeed data is an asset, why is it not carried on people’s balance sheets? Why does data held by companies or even the Government not feature in some sort of valuation? Just like oil held in a company or privately, it will eventually be used in some way. That releases revenue that would otherwise have to be accounted for and there will be an accounting treatment. But as an accountant I have never seen any company’s assets that ever put a value on data. That is where I came from.

A sovereign data approach, which labels assets of value to the economy held by the country rather than a company, seems to be a way of trying to get into language what is more of an accounting approach than perhaps we need to spend time on in this debate. The noble Baroness, Lady Kidron, has gone through the amendment in a way that explains the process, the protection and the idea that it should be valued regularly and able to account for any returns it makes. We have also heard about the way it features in other publications.

I want to take a slightly different part of the AI Opportunities Action Plan, which talks about data and states:

“We should seek to responsibly unlock both public and private data sets to enable innovation by UK startups and researchers and to attract international talent and capital. As part of this, government needs to develop a more sophisticated understanding of the value of the data it holds, how this value can be responsibly realised, and how to ensure the preservation of public trust across all its work to unlock its data assets”.


These are very wise words.

I end by saying that I was very struck by the figures released recently about the number of people who opted out of the NHS’s data collection. I think there are Members present who may well be guilty of such a process. I of course am happy to have my data used in a way that will provide benefit, but I do recognise the risks if it is not properly documented and if people are not aware of what they are giving up or offering in return for the value that will be extracted from it.

I am sure we all want more research and better research. We want research that will yield results. We also want value and to be sure that the data we have given up, which is held on our behalf by various agencies, is properly managed. These amendments seem to provide a way forward and I recommend them.

[Lord Freyberg (CB)]

My Lords, I support Amendments 58 and 71, which address what I consider to be a fundamental oversight in our nation’s stewardship of public data assets.

While these amendments embrace intentionally broad definitions of sovereign data assets and a national data library, their purpose is precise: to recognise, protect and optimise the public value of these critical national resources for generations to come. The amendments’ dual emphasis on robust consent mechanisms and a transparent licensing framework—one that provides preferential access to UK entities—strikes a careful balance between fostering public trust and safeguarding our national interests.

Central to these amendments is the requirement for the Secretary of State to provide comprehensive reporting on both the current value and projected returns from these assets. This addresses a striking accountability gap in our governance framework. While the National Audit Office maintains rigorous oversight of our physical infrastructure, previous Administrations have failed to adequately account for the taxpayers’ substantial investment in public data infrastructure and intangible or knowledge assets.

Consider this striking disparity: Ernst & Young’s 2019 analysis projected that a curated NHS dataset could generate £5 billion annually for the UK, while delivering £4.6 billion in patient benefits through enhanced infrastructure. Yet we lack robust mechanisms to track whether these substantial benefits materialise or are captured and flow back into our healthcare system. This speaks directly to the Tony Blair Institute’s prescient call last year, endorsed by none other than the Minister, the noble Lord, Lord Vallance, for the establishment of an NHS data trust or comparable stewardship vehicle.

As we navigate an AI revolution, we must shift our focus from simply managing risks to proactively harnessing opportunities for social impact and economic growth. This raises two fundamental questions. How can we leverage this technological transformation to maximise public benefit, and how will Parliament effectively scrutinise future trade agreements, particularly with nations like the United States, without established evaluation methodologies or transparent licencing systems of our valuable data assets?

The British public, already bearing a significant tax burden to fund public services, deserves assurance that our valuable digital assets will not be transferred today, only to be transformed into expensive treatments tomorrow, benefiting companies that pay tax overseas. Amendments 58 and 71 provide essential safeguards against the inadvertent undervaluation or transfer of these critical national assets. They ensure proper stewardship of our digital resources for the public good, and I therefore support the intentions behind these amendments.

King’s Speech (4th Day)

Lord Freyberg Excerpts

Monday 22nd July 2024 Lords Chamber

[Lord Freyberg (CB)]

My Lords, it is a pleasure to welcome the two Ministers, the noble Lords, Lord Vallance and Lord Livermore, to their new roles. I congratulate the noble Lords, Lord Vallance and Lord Petitgas, on their excellent maiden speeches.

At this late hour, I shall focus on the Government’s economic growth plans, with particular emphasis on science, technology and innovation. I warmly welcome the appointment of the noble Lord, Lord Vallance, a recognised scientific expert, as Minister for Science, Research and Innovation. Elevating experts to harness new and emerging technologies for national security, energy independence and economic growth is an encouraging move, as were the new Minister’s remarks on the subject to the G7 Science and Technology Ministers’ meeting in Bologna earlier this month.

I have often spoken in this House about the potential for data to transform the UK’s research and innovation landscape, especially with regard to the value of the nation’s health data. Therefore, I was heartened by the Minister’s support for an NHS data trust and eagerly anticipate concrete measures in this area. I would, however, like to understand how the Minister plans to ensure that the economic benefits of a single front door, facilitating industry access to health data, will extend beyond the UK’s “golden triangle” of Cambridge, Oxford and London to other regions known for pioneering in this space and which could, in some important respects, be said to generate a disproportionate volume of the health data that industry might wish to utilise.

Over recent years, much has been said about trust in relation to responsible data access and use. Similarly, we often hear about traditional infrastructure developments aimed at boosting growth nationwide. However, little has been said about how the Government plan to ensure that all regions share in the benefits of data-driven growth. I wonder whether the Minister could comment on that in his reply.

I also welcome proposals to introduce longer-term funding settlements for research tied to key pillars of the Government’s industrial strategy, including the life sciences. Private investment in life sciences R&D contributes £5 billion annually, accounting for approximately 50% of total investment, so measures encouraging confidence and stability post-Brexit are crucial to help steady the ship of state. Any measures designed to ensure that public investment benefits regions beyond “the usual suspects”, such as the Government’s renewed emphasis on devolution, are, once again, to be encouraged.

The new Minister’s pro-innovation approach to regulation seeks to balance known knowns with unknown knowns, a hallmark of scientific exploration, particularly regarding artificial intelligence. His intentions are clearly reflected in the Government’s proposals to consolidate relevant regulators. I look forward to engaging with these detailed proposals as they emerge. However, like the noble Lord, Lord Clement-Jones, the noble Baronesses, Lady Bonham-Carter and Lady Stowell, and others, I seek confirmation of how the Government intend to protect the rights of our creative industries, which significantly contribute to the UK’s GDP. Concerns persist about generative AI companies using creative works without consent or remuneration. Overly restrictive copyright laws can hinder innovation, while too lenient laws can fail to provide adequate incentives for creation. Effective copyright policy should aim to strike a balance that protects creators’ rights while fostering an environment conducive to innovation. I hope the Minister will look to find a middle ground on this.

Additionally, I am interested in how traditional economic growth policies, such as freeports, could be augmented to boost digital exports through innovative incentives.

Finally, I wholeheartedly support the consolidation of the Government’s digital functions under the Department for Science, Innovation and Technology, DSIT, to unify efforts in the digital transformation of public services. The proposal to establish a national data library is particularly intriguing, given the extensive data currently collected and curated by local government and integrated care systems. Significant investment in data standardisation, collection and analysis is urgently needed to transform the productivity of social care, our least digitised and, in many respects, most left-behind sector. It is crucial that the terms of reference for any relevant reviews and commissions explicitly address the role of digital transformation in the future of care, including workforce development plans.