How have the UK’s IP laws changed after Brexit?

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How have the UK’s IP laws changed after Brexit?

The impact of Brexit has been felt in a number of ways since the UK’s official withdrawal from the EU, but the longer-term consequences have still yet to become clear. Over time, the UK’s laws will diverge from those of the EU, and this could have significant implications for British businesses, and for European businesses working in the UK market.

One area of particular interest for businesses is intellectual property (IP), which concerns many of the most valuable assets a company can own. IP includes everything from a company’s name, logo and slogan, to its website, product designs, inventions and even certain trade secrets.

There are general standards for IP laws, but the regulations themselves differ from country to country, and enforcement varies significantly. As a united bloc, the EU is renowned for having some of the most robust intellectual property protections in the world, but with the freedom to set its own rules, it remains to be seen where the UK will fall along this spectrum.

When revising IP regulations, UK lawmakers will need to balance the interests of businesses that desire to protect their IP with the need for freedom in technological development. This may be made more complicated by the World Intellectual Property Organization’s (WIPO) pursuit of an international framework for IP and innovation, particularly with regard to emerging AI technologies.

Accommodating new technology

IP is especially vital to consider in the current technological climate. Innovation has continued to speed up in recent years, often thanks to the development of underlying technologies like AI algorithms and the blockchain. Both of these creations have led to intellectual property concerns in the last few years, and look set to raise more questions as they grow in prominence.

There is already much that may be of interest to UK businesses in this space, and resolving the IP challenges posed by generative AI and NFTs is an urgent matter. There are no precedents upon which lawmakers can rely, and the UK will no longer be able to rely on the insights of the 27 EU member states for support in developing legislation. Companies across all industries in the UK should take note and, wherever possible, participate in government consultations to ensure their voices are heard, that their concerns about their IP are taken into account, and that their rights as IP owners are upheld.

Generally speaking, it remains to be seen how the law will change in response to these technologies enabling IP infringement. However, UK law has already diverged from the EU in certain key areas, as the country aims to become a global centre of AI innovation.

In 2022, the UK government amended the country’s copyright law to allow the developers of AI systems to use copyright-protected material for the purposes of machine learning. Generative AI systems rely on the input of large amounts of data, which they can analyse to detect patterns and begin to generate their own material.

Certainly, there was already a wealth of data available for machine learning simply due to the enormous volume of writing, images and other materials on the internet. Now, by adding copyright-protected works into the pool of data that AI systems can freely access, these systems can remain more up-to-date with new work and refine their algorithms and outputs to an even greater degree.

The UK hopes to become a hotbed of innovation for AI and is working on further legal frameworks to support the development of this technology. As it stands, it is hard to predict what the impact of this legal change will be, but much speculation has centred on the ability of generative AI tools to exactly replicate the work done by other creators. If an AI system was fed the entire bibliography of a prolific writer, could it then replicate their style exactly and produce work indistinguishable from theirs? Would this constitute an infringement of their copyright?

Because of the difficulty of enforcing copyright law on the internet, we have already reached a stage where AI systems are accessing, parsing and integrating copyright-protected works. Recently, artists have begun to express concerns about their names being used as prompts for ChatGPT, Dall-E and other generative AI tools, which can then reproduce pieces of content based directly on the unique features of a particular artist’s style.

As such, this is one area that businesses should continue to carefully monitor. Certainly, laws surrounding AI and other emerging technologies will be subject to ongoing changes as our understanding of their functions and possibilities develops. 

What other changes are expected?

As of yet, the UK has largely incorporated EU rules into its own legislation, and there is generally a strong overlap. The government has not indicated that IP is a key priority in terms of revising legislation, but with the innovation taking place in the AI space, it seems inevitable that further changes will be needed. However, this is not the only motivation that might cause UK IP laws to change.

European intellectual property laws are among the most stringent in the world, and have come under fire from the US Intellectual Property Office (USIPO) - in particular, for being too strict with regard to geographical indications. Given the UK’s strong business relationship with the US - and its increased dependence on the US, having split from its biggest trading partner - this might now become an area for negotiation and revision. It is impossible to confidently say how IP laws will change, but the possibilities give rise to uncertainty.

For businesses, the best way to manage and protect IP is to work with a dedicated intellectual property solicitor. At JMW, our intellectual property team takes whatever steps are necessary to stay up-to-date with the law. This can ensure businesses enjoy the utmost protection for their IP and benefit from the full force of the law in securing and defending their assets.

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