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Generative AI: A global guide to key IP considerations
Artificial intelligence (AI) raises many intellectual property (IP) issues.
Global | Publication | 一月 2023
This analysis was first published on Lexis®PSL.
Since the UK voted to leave the European Union (the EU) it has enacted various laws to give effect to the referendum result, including the European Union (Withdrawal) Act 2018 (the EU(W)A 2018). The rationale behind the EU(W)A 2018 (as later amended) was to maintain legal certainty following Brexit, by (among other things):
As the arrangements governed by the EU(W)A 2018 were never intended to apply indefinitely, the Retained EU Law (Revocation and Reform) Bill (the Bill) seeks to repeal, or to facilitate the amendment of, certain REUL, as well as clarifying REUL’s status and interpretation.
As initially drafted, key provisions in the Bill include:
Planning control regulates the use and development of land and buildings. Environmental protection is one of a number of considerations (albeit an important one) taken into account by local planning authorities (LPAs) when determining whether to grant planning permission or, to exercise some other statutory power. It is not the case that planning permission will automatically be refused for schemes that involve environmental risks.
Within the UK planning system, the assessment of the effects of a proposed development on the environment and habitats is derived from EU law. These assessments may be affected by the Bill. For example:
Unless restated, amended or replaced with alternative legislation, all REUL relevant to the UK planning system will cease to apply from 31 December 2023, unless an extension applies. This could mean a number of environmental considerations and assessment requirements could fall away. Rather than liberalising the planning system, however, the timeframe and volume of legislation mean that there is a real risk that the Bill results in more delay and bureaucracy while developers and authorities grapple with a changing legislative landscape and potentially rushed, poorly drafted replacement legislation. These problems are likely to be exacerbated by the fact the Bill seeks to grant higher courts discretion to depart from retained EU case law and retained domestic case law in certain circumstances, including where the case law has been determined or influenced by retained
EU case law.
While it remains to be seen what the Government will do, our prediction is that the Bill will not herald a new dawn of environmental protections that exceed existing standards (certainly, the UK has rarely sought to do this before and Clause 15 may act as a break in terms of enhancing the position). Similarly, given climate change and the recognised need to conserve and enhance the environment and biodiversity, it seems unlikely that the Bill will result in significant deregulation, particularly in relation to the environmental assessment and habitats regimes. This expectation is supported by the Government’s actions to-date. For example, while sections 112 and 113 of the Environment Act 2021 grant the Secretary of State powers to amend the Habitats Regulations (including in relation to appropriate assessments), in doing so the Secretary of State must:
This article applies to England only.
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Artificial intelligence (AI) raises many intellectual property (IP) issues.
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