In our August blog, we discussed the recent legal action, which is the first of its kind in the UK, being taken by Mumsnet against Open AI.
In short, the online influential parenting platform, Mumsnet, has launched a legal complaint against OpenAI, the developer of chatbot ChatGPT, accusing the AI company of scraping billions of words and content from the site without consent.
The legal action brought by Mumsnet alleges copyright infringement, database right infringement, and breach of terms of use, and demands that Open AI delete all Mumsnet data it holds and cease any further use of it.
One month on from this claim hitting the headlines, in this follow up blog we will discuss what is likely to be the main subjects of the legal dispute, the battle grounds which may form, and the policy decisions to be made by governments in order to deal with the challenges which AI poses.
The legal battle grounds
In the UK, the legality of data scraping is subject to a number of different factors, including the type of data being collected, the collection method used and the rights of the various data owners.
As for the litigation between Mumsnet and Open AI, the key issues in dispute which will be assessed by the court to determine its legality are as follows:
Aspect of websites and their content, including aspects of Mumsnet’s parenting platform, are potentially protectable by copyright. Therefore, scraping data without the copyright owner’s permission can constitute copyright infringement.
This is what Mumsnet will be arguing has taken place. Justine Robers, Founder and CEO of the platform, is optimistic with the likelihood of success too. “We think we have a good chance”, she says. In the US, there have already been a number of copyright infringement cases brought against AI companies. In many of these cases, AI companies are adopting the defence of arguing that their actions are permitted by the “fair use” doctrine, which allows for copyright infringement in certain circumstances.
The UK has a similar concept, known as the “fair dealing” exception, but it is significantly narrower in scope and not nearly as permissive as the approach in the US, particularly where copying has taken place in a commercial context.
This argument is likely to sit front and centre of the litigation between the parties. It will be for Mumsnet to prove that their website qualifies for copyright protection, and by scraping data, Open AI copied a substantial part of the website. Conversely, it will be for Open AI to demonstrate it has a defence, including but not limited to whether its acts fall within a permitted exception.
Copyright protects the selection or arrangement of material in a database where this is original (i.e. creative). In addition to copyright, database rights protect the contents of a database.
A database does not have to be original for it to qualify for database rights, but there needs to have been a substantial investment in obtaining, verifying or presenting the data.
Whilst Mumsnet will of course argue that their platform qualifies for database rights, and in particular by reference to the investment in obtaining the data over many years, it is likely that Open AI will put forward an argument that Mumsnet’s database fails to meet the criteria for protection, potentially pointing to a lack of substantial investment in verifying the data.
Most websites contain Terms of Service/Use which set out the “dos and don’ts” when using their site.
Mumsnet, like many other platforms, have terms which prohibit data scraping. They will argue that by scraping the data without consent, Open AI are in breach of contract and as a result damages should be awarded.
Open AI will likely dispute the existence of any binding agreement, and the legality of the terms which prevent using data from Mumsnet’s website. There is also likely to be an argument as to what damage has been caused, and how that is quantified should damages be awarded.
Policy decisions
AI is undoubtedly developing at a rapid pace. It likely that the Mumsnet v Open AI will be the first of many legal disputes concerning AI. The policy implications of such rapid development extend from intellectual property laws to national security.
In the UK, there is no dedicated AI legislation. Existing legislation has been interpreted and, in many cases, stretched in order to govern how AI can be used in practice – such as in relation to data protection, equality and human rights and employment law.
In March 2023, the UK Government announced a ‘pro-innovation’ approach to AI regulation, which largely regulates AI via existing laws and existing regulators.
However, the current state of play has been deemed unstainable by many stakeholders, who have indicated that additional legislation and action will be required in the near future. These concerns were raised in the ‘Policy implications of artificial intelligence’ research briefing published earlier this year. This research briefing indicates that potential future legislation may look to address concerns over AI by introducing mandatory impact assessments, bans on certain AI applications, and a right for human intervention to challenge AI decision-making.
As AI continues to develop, the UK government will have to strike a balance between innovation, which encourages companies to develop their AI products, and protection of the public, who are likely to be integral to that innovation process.
Arguably, this is one of the biggest challenges the UK government faces over the next few years. Until AI-specific legislation is introduced, the UK courts will have to continue to apply existing legislation.
The recent legal action, which is the first of its kind in the UK, being taken by Mumsnet against Open AI will no doubt play a key role in determining how existing legislation is interpreted and applied to AI-related disputes.
Our London based intellectual property solicitors have the expertise to deal with the legal issues that surround copyright and database right, with a particular focus on dealing with these issues in the tech sector and AI. Our intellectual property litigation specialists have advanced and defended cases in the English courts involving copyright infringement and database right claims.
If you have concerns about copyright infringement or and database rights that are affecting your business, please contact Waterfront here and a member of our IP & Disputes team will be in touch.
The current legal framework in the UK does not allow copying of copyright-protected material for training generative AI models, except where it is carried out with permission of the copyright owner or done in a research or study context and for purely non-commercial purposes.
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