Read, Rethink, Reform: Why the UK Must Look Beyond Baseless Claims about Opt-Out in its AI & Copyright Thinking
What’s it About
Contrary to claims iterated in responses to the UK AI & Copyright consultation by certain stakeholders that TDM opt-outs breach the Berne Convention, Martin Senftleben’s 2022 article, Compliance of National TDM Rules with International Copyright Law: An Overrated Nonissue?, reaches very different conclusions. IViR’s Director demonstrates that TDM activities are a new form of use not contemplated by traditional copyright law, and that EU countries have wide flexibility to design innovation-friendly rules.
In short, not only are opt-outs compatible with international law, but the UK is free to go further than the EU, especially as the EU itself starts reviewing and simplifying its AI Act.
Why It Matters
This article refutes claims by certain UK stakeholders that the opt-out mechanism under Article 4 of the EU Copyright Directive violates Article 5 of the Berne Convention, arguing instead that the UK should adopt an opt-in system. These claims even materialized as amendments to the Data Bill, a misguided attempt to insert the wrong solution into the wrong legislative instrument, with no regard for the ongoing UK consultation process.
However:
- TDM is fundamentally different from traditional copying. At the training level (input), it does not use works for expressive enjoyment but analyses them as data.
- Even if TDM did fall within copyright scope, the three-step test allows for broad exceptions for research and innovation purposes.
- TDM opt-out mechanisms (like the one under Article 4 of the DSM Directive) are legally permissible under international law.
- The EU went beyond international requirements, adopting a more restrictive model than necessary. The UK can—and should—choose a more innovation-friendly path without fear of breaching international law.
Rethink – The Bigger Picture
The UK Consultation: A Real Opportunity to Lead
With its AI and copyright consultation recently closed, the UK has a unique opportunity to set a progressive global example. Unlike the EU, which is already considering simplifications to the AI Act, the UK can, from the start, build a clear, flexible, and research-supportive TDM regime that strengthens its leadership in AI innovation.
Lessons from Global Trends: Purpose Over Formalities
Other countries, such as Japan and the US, have adopted purpose-driven approaches through broad fair use or flexible exemptions for TDM. Switzerland, too, looks at why the research is conducted, not who conducts it. These models ensure innovation thrives without unnecessary legal barriers and offer a roadmap for the UK to modernise its copyright framework.
Reform – The InfoLabs Take: Possible Path Forward
To ensure the UK remains a leader in responsible and cutting-edge AI, UK policymakers should:
✅ Reject false claims about Berne Convention breaches.
✅ Embrace a purpose-driven, innovation-supportive TDM model.
✅ Provide legal certainty for public-private AI research partnerships.
✅ Build a forward-looking copyright regime that protects creativity without stifling technological growth.
Bottom line: The UK should not let outdated interpretations block its path to innovation. It’s time to lead, not follow.
Written by Caroline De Cock, LL.M. , Head of Research.
May 5, 2025
