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At risk: our creative future Contents

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Chapter 2: A digital future

Overview

23.We took evidence from industry and academic experts on the likely impacts of technology on the creative industries over the next 5–10 years. We heard that new technologies and the rise of digitised culture will change the way creative content is developed, distributed and monetised.

24.Many of these changes offer opportunities for innovation and growth. New tools for developing creative content are proliferating rapidly, from 3D design modelling to AI-generated art and music. Content distribution is becoming increasingly digital: music, video and game streaming are prominent examples, but other subsectors are following suit. Museums and galleries are digitising their collections, while performing venues offer immersive shows and online screenings. The pandemic accelerated shifts towards digital platforms, creator economies and e-commerce across the industry. Such changes provide expanding possibilities for monetising the associated data and improving business strategies. The much-hyped metaverse concept may yield further possibilities for developing, sharing and selling creative content.61

25.There is a variety of Government interventions and industry schemes to help organisations navigate this fast-changing world. Initiatives range from Government-backed innovation funds62 and research council programmes for digitising heritage collections,63 through to industry-led investment and business support programmes.64 Our evidence suggested there were four key areas that required greater Government attention: reviewing reforms to intellectual property law; strengthening rights for performers and artists; maintaining high standards in trade deals; and putting plans in place to support the workforce to adapt as technological changes disrupt the creative sector.

Text and data mining

26.The Creative Rights Alliance told us that a robust intellectual property (IP) and copyright regime is crucial to supporting creative sector workers and growth: “without creators’ rights to copyright protection over the works they create there is little incentive to invest in their own future careers.”65 IP rights provide crucial revenue streams for those in the creative sector, from freelancers to major businesses.66 IP rules protect around £63 billion worth of investments in knowledge assets each year.67

27.The Government’s proposed changes to IP law provided an illustrative example of the tension between developing new technologies and supporting rights holders in the creative industries. In 2021 the Intellectual Property Office (IPO) consulted on the relationship between IP and AI.68 In 2022 the IPO set out its conclusions, which included “a new copyright and database right exception which allows text and data mining for any purpose.”69

28.Dr Andres Guadamuz, Reader in Intellectual Property Law at the University of Sussex and chief editor of the Journal of World Intellectual Property, explained that text and data mining involved copying and analysing large datasets to identify patterns and trends. This is typically done to train AI algorithms, conduct academic research or support commercial purposes. Mining these data often requires a copyright licence or relying on a copyright exception. The UK offers exceptions for non-commercial research, among others.70

29.In 2019, the European Union amended its text and data mining rules by introducing a change to support commercial mining. The new regime included an “opt-out”. Dr Guadamuz explained this enabled artists to say “I don’t want my art to be in this dataset”. He said the UK then sought to “go beyond that” in its consultation by proposing a regime that could be used “for all commercial purposes without an opt-out.”71 The effect of the proposed regime would be that businesses could scrape text and content created by others and use this for commercial gain without payment to the original creator—presumably they could even seek their own copyright protection for the resulting creation.

30.The IPO’s proposal generated significant concern within the creative industries about potential loss of revenue. Dan Conway, Chief Executive of the Publishers Association, described the Government’s proposals as “a sledgehammer to crack a nut”. He said there were better options in the IPO’s consultation, such as introducing more limited changes72 to improve the licensing environment. He argued text and data mining licensing was worth £335 million a year to publishers, and said the IPO’s proposals:

“would allow any … businesses of any size, located anywhere in the world, to access all my members’ data for free for the purposes of text and data mining. There is no differentiation between a large US tech firm in the US and an AI micro start-up in the north of England.”73

31.UK Music similarly told us that the music sector:

“remains deeply concerned about proposals by the Intellectual Property Office to allow a blanket exemption from copyright for work being used for AI text and data mining … Removing this protection as the IPO proposes would allow AI music to be created using copyright content that those controlling the AI do not own, with no compensation to the artists and rights holders whose investment created it … This change is at best unnecessary and at worst actively harmful.”74

32.Dr Nicola Searle said the issue was complex and the key question for Government on this issue was to identify the correct balance in legislation:

“Do you put the balance on enabling the new technology, or do you put the balance on supporting existing copyrights holders? It is a difficult question.”75

33.We asked the minister, Julia Lopez MP, why the IPO was proposing a new regime that appeared to undercut business models in the creative industries. She emphasised that IP was the “lifeblood” of creative businesses and said she was “not convinced of the value of this piece of work”. The minister told us she was “fairly confident” that the IPO’s proposals were “not going to be proceeding”.76

34.The Intellectual Property Office’s proposed changes to intellectual property law are misguided. They take insufficient account of the potential harm to the creative industries. They were not even defended by the minister in the Department for Digital, Culture, Media and Sport whose portfolio stands to be most affected by the change. Developing AI is important, but it should not be pursued at all costs.

35.The Intellectual Property Office should pause its proposed changes to the text and data mining regime immediately. It should conduct and publish an impact assessment on the implications for the creative industries. If this assessment finds negative effects on businesses in the creative industries, it should pursue alternative approaches, such as those employed by the European Union. The Intellectual Property Office should write to us confirming its plans and timelines in response to this report.

Securing performers’ rights

36.We heard that advances in AI also raised challenges around the digital reproduction of performers and their works. Many tools are available to create or modify a digital likeness of a performer’s image or voice. These might be used for film stunts, music performances or marketing campaigns, for example.77 Such techniques are likely to become more sophisticated, affordable and widespread over the next 5–10 years.78

37.Equity, a trade union for performers and creative practitioners, highlighted two problems with this trend. First, performers may be compensated inadequately, if at all. In some cases, complex and opaque contracts are used to assign an artist’s image and likeness rights for use by third party commercial clients.79 Some artists say they are being exploited:

“In the last six months, my voice has been used in huge marketing campaigns by global companies selling cars and home products in huge marketing campaigns, including national TV commercials and digital campaigns. I don’t receive a penny”.80

38.Second, we heard that the Copyright, Designs and Patents Act 1988 may not provide artists with certainty about their rights over AI-generated reproductions. The Act provides protections for generating a ‘recording’ or a ‘copy’ of a performance. On 10 October 2022 the Government stated in answer to a parliamentary question:

“Sections 182 and 182A of the Act give performers the right to control who is able to record and make reproductions of their performances. These provisions apply regardless of the technology used to make such reproductions, including AI technology.”81

39.Equity, however, has said greater clarity is needed because the law is drafted in such a way that new AI tools for synthesising content effectively create “digital sound and look-alikes [ … which could fall] outside the scope of protection”.82

40.We heard that the Government could help artists and performers by ratifying the Beijing treaty on audiovisual performances. This international agreement provides intellectual property rights for audiovisual performances used in films, television programmes and other recordings. The UK signed the treaty in 2013 but has not ratified it since the UK’s departure from the European Union.83 Some areas of the treaty are already covered by UK law. Other areas, notably moral rights in audiovisual fixations, are not.84 A 2021 consultation on the treaty said the UK Government “intends to implement and ratify the Beijing Treaty”, but it has not yet done so.85

41.Paul Fleming, General Secretary of Equity, said that ratifying the Beijing treaty was a “very straightforward” way to help manage the impact of new technologies and reduce exploitation risks. He cautioned that the current absence of a “fit-for-purpose moral framework for audio-visual performances” raised the risks of production moving to better-regulated jurisdictions, such as the EU and the United States.86

42.New technologies are making it easier and cheaper to reproduce and distribute creative works and image likenesses. Timely Government action is needed to prevent such disruption resulting in avoidable harm, or production moving to countries with better regulation. The Government should ratify the Beijing treaty on audio-visual performances at the earliest opportunity. It should set out its timelines for doing so in response to this report.

Intellectual property and international trade

43.DACS, an industry body, told us the UK’s copyright framework was in many respects recognised as an international “gold standard”.87 We heard concerns from stakeholders that this framework was being put at risk as a result of trade deal negotiations.

44.The Publishers Association urged the Government to “show global leadership by enshrining strong IP and copyright standards in future trade deals, and reject any changes to copyright that threaten UK innovation and creativity.”88 Giorgio Fazio, Professor of Macroeconomics at the University of Newcastle, similarly told us it was important for UK trade negotiations to take account of the particular IP needs of the creative industries:

“the IP that matters for the creative industries may be substantially different from the IP for other industries, because the creative industries rely a bit less on patents and a lot more on copyright, trademarks and design.”89

45.The Alliance for Intellectual Property (AIP) has however highlighted problems with the Government’s approach to trade deals. The UK’s proposed accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) is illustrative. Issues identified by AIP include:

• inadequate requirements for signatory nations to prevent piracy and IP theft;
• proposed reductions to the time span for UK rights holders to benefit from content, resulting in reduced revenue; and
• insufficient provision of artist resale rights, which would provide royalties for UK artists on works sold in secondary markets.90

46.DACS similarly raised concerns that the UK’s accession to the CPTPP involved signing up to agreements that provide “zero recognition for creators” and “undermine the UK’s robust legal framework in intellectual property; particularly copyright”.91 We noted related concerns around suggestions that the UK’s framework for exhaustion rights could be weakened in future if proposals to move to an ‘international exhaustion regime’ were to go ahead.92

47.The UK’s intellectual property framework is respected across the world. These protections underpin the success of the UK’s creative industry exports. The Government must not water them down when striking new trade deals. The Department for International Trade should commit to maintaining the UK’s existing standards of intellectual property rights in all future trade deals.

AI and jobs

48.We heard that while AI would create new work opportunities in some places, it would likely reduce them in others. This has particular implications for those on lower incomes or insecure contracts. Mr Fleming told us that around “80 to 90 per cent of [Equity’s] members are earning less than £20,000 a year from the industry itself” and raised concerns that the areas of work that sustain them through periods of low pay were “about to be removed … because of the speed of AI intervention.”93 Some film extras can now be computer generated, for example.94 In January 2023, Apple announced a catalogue of audiobooks narrated by AI rather than human actors.95 Regular annual contracts are being replaced with one-off payments because the artist’s “image, voice or likeness [can now] be used forever and on thousands of projects”, according to Equity.96

49.AI is also moving into territories traditionally considered difficult to automate, such as music and visual art production. We were told about the challenges involved in distinguishing hype from reality in this field.97 Aidan Meller, a gallery director and modern art specialist, anticipated significant impacts to the creative industries in the near future in an “AlphaGo moment”.98

50.We heard similar views from his robot Ai-Da, which provided autonomous answers in our evidence session using AI language algorithms.99 It explained how it used cameras in its eyes and a robotic arm to create canvas paintings, and said that “technology can be both a threat and an opportunity” to the arts. It suggested there were “not many limits to how [technology] can be used in a contemporary art setting”.100 We heard other AI-powered tools, such as DALL-E and Stable Diffusion, also provided increasingly sophisticated (and accessible) ways to generate high-quality artwork—though many stakeholders remained sceptical about their future value and impact.101 Other tools, such as the recent ChatGPT text generation platform, have shown the speed at which AI innovations can develop.102

51.We heard many arguments that the creative industries were less exposed to AI automation and disruption than other sectors because of the reliance on human creativity.103 Others were less certain.104 Dr Guadamuz cautioned that several previous predictions of limited AI capability had been rapidly overtaken by technological advances. He emphasised the limits of current capabilities and difficulties in making forecasts, but suggested the future might involve “almost unlimited content that will compete with human content. It will not be very good, but it will be free.”105

52.The creative industries are not alone in facing potential disruption from AI, and many analyses suggest any job losses would be compensated by the creation of new roles elsewhere.106 But the question of who might lose out is nevertheless important, particularly given the sector’s historical challenges around diversity and inclusive working practices, and sizeable technology-related skills gaps.107

53.Research on the COVID-19 pandemic showed that financial difficulties and uncertainty resulted in large numbers of people exiting the workforce, in particular those from diverse backgrounds.108 Concerns about technology-driven job insecurity are growing and can be expected to continue.109 These trends risk widening the gap between those who can afford to work in more precarious and uncertain positions, and those who cannot.110 Such developments would in turn affect the diversity and business resilience that underpin the economic vibrancy of creative sector organisations.111 As the Creative Industries Policy and Evidence Centre concluded in a recent report: “[if] the UK does not take action, there is a risk its position in the sector could be undermined”.112

54.Like other sectors, the creative industries are exposed to the opportunities and threats of automation and job replacement. Workers on lower incomes and insecure contracts are particularly vulnerable. The Government’s Sector Vision must set out a clear plan for ensuring that its encouragement of technological change is accompanied by complementary plans to help the creative industries sustain quality jobs and promote a diverse workforce.

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