The AI Opportunities Action Plan: legal considerations for cultural institutions

27.02.2025

Earlier this year, Keir Starmer set out his AI Opportunities Action Plan. The overarching strategy underpinning the plan – which was drafted by tech entrepreneur Matt Clifford and endorsed by the Government – is to “ramp up AI adoption across the UK to boost economic growth, provide jobs for the future and improve people's everyday lives”. The plan touches on several diverse areas, including AI’s impact on energy consumption and cultivating the growth of AI adoption in the private sector. Most notably for our cultural institution and other content-rich clients, recommendation 13 from the plan sets out the intention to establish a “copyright cleared media asset training data set which can be licensed internationally”. Details on this dataset are currently scant at best, but the plan mentions partnering with several high-profile national institutions who hold large volumes of cultural assets, including the National Archives, the Natural History Museum, the British Library and the BBC, to develop a commercial proposition for sharing their data for AI purposes. The list appears tentative for now, and so there is likely scope for other institutions and organisations to sign up (or be co-opted…).

Although the specific details of the Government’s plan require (significant) further formulation, it is still, more generally, a timely opportunity for cultural institutions - sitting on huge swathes of content-rich information that any large language (or other) model would love to sink their algorithmic teeth into - to evaluate (or possibly re-evaluate) their appetite and disposition for engaging with the AI technology companies. This includes considering the scope of possible licensing arrangements and the corresponding revenue streams.

As a firm, we have been advising clients across various content-rich sectors on the AI-licensing trend and are well positioned to assist cultural institutions in this area too, particularly given our knowledge and experience of the legal frameworks within (and against) which they operate.

AI licensing: a growing trend, but not without its sceptics

There have been mixed responses to the recommendation so far. The Government’s official response to Clifford’s plan states that the Department for Culture, Media and Sport (DCMS) and the Department for Science, Innovation and Technology (DSIT) will now engage with prospective partner organisations to explore this recommendation further. At the same time, the BBC – which sits on one the world’s largest media archives – offered a tepid response, noting that they had not been approached by the Government regarding the plan and would need to carefully assess the proposal. One crossbencher from the House of Lords even asserted that the plan “gives no control, agency or right to license to these institutions … (it is a) sell-out of the UK’s creative industries”.

Criticisms aside, the general direction of travel recently has seen AI firms striking deals with content-rich owners to secure licensed access to the content for the development of their AI tools. There is a mutual benefit: content holders can ringfence their IP and enjoy some financial uplift from licensing their content, while the AI companies gain access to vast troves of material which they may not otherwise be able to access or train their tools on lawfully. As a firm, we are already advising publishers on licensing deals with AI companies, which is a new revenue stream opportunity for many of them, and we anticipate that this will be a growing trend and potential opportunity for universities and, subject to the nuances described below, cultural organisations too.

Realising the commercial value of cultural assets

The landscape is more varied for cultural institutions, however. Firstly, from a purely commercial perspective, and as alluded to above, there is a (hopefully unfounded) concern that the Government would effectively be mandating participation on standard terms. In agreeing, could institutions be precluded from striking other, potentially more lucrative deals elsewhere to license their content? Relatedly, will there be a thorough appraisal process to properly value the content to be licensed? Organisations like the BBC and the nation’s museums are an Aladdin’s cave of cultural assets – will the true value of the visual media, literature, historical materials, and other content they have produced or collected over the years be fairly priced into a future deal? It is interesting that this has been a consistent concern for the sector. In 2023, The National Lottery Heritage Fund’s report on AI and heritage organisations noted that:

“Heritage organisations who may not be familiar with thinking about their assets in the context of AI may undervalue their contribution in partnerships with external collaborators like technology suppliers. This can lead to organisations failing to leverage their assets (eg, their reputation, access to collections or intellectual property) in exchange for equivalent value from their collaborators.”

IP law complexities

There are further complexities from an intellectual property law perspective too. On the one hand, there is some attraction to striking these types of licensing deals given the uncertainty around AI and IP infringement. We still lack a definitive position on the permissibility of AI tools exploiting third-party materials to generate content. Several high-profile cases, both in the UK and the US, are currently stress-testing this point in the courts, and there is uncertainty as to whether a new opt-out exemption to copyright infringement for commercial text and data mining will be introduced into statute. Meanwhile, AI firms and rightsholders are opting for licensing deals to safeguard their respective positions both legally and commercially.

For cultural institutions, however, the position is arguably more challenging given the underlying content which could be licensed as part of the Government’s framework, particularly in terms of third-party rights clearances. Institutions will need to proceed carefully when determining:

the IP rights which underpin the various materials they are licensing; and
(ii) whether any third parties hold rights in those assets (for example, any copyright or moral rights in an item which is held on long-term loan).

While many items within an institution’s historic collection may be out of copyright (which typically expires 70 years from the creator’s death), the position will invariably be more complex than, say, a publisher licensing works which they confidently own all the rights in, or where rights have been waived. Although we have seen an uptick in cultural institutions’ utilisation of AI tools, the use cases tend to be "in-house" – harnessing AI tools to aid collections management, assist researchers and analyse archive data – rather than entering into public-facing commercial deals, which invariably adds greater complexity.

Cultural institutions may find themselves in a stronger bargaining position than, for example, publishers, if they have not yet placed all transcriptions and photographs of their cultural assets online (making them more vulnerable to scraping). An AI company will simply not be able to access these materials without a licence from the institution.

Regulating the flow of information

There are also other, more targeted areas of law that may be relevant. For example, much of the content held by a majority of publicly funded museums, archives and galleries falls within the scope of The Re-use of Public Sector Information Regulations 2015 (PSI). PSI already imposes an obligation on such organisations to make certain information they hold available to others for re-use, often on generous terms, and to be transparent about licensing arrangements. For such organisations there is a question to what extent Starmer’s new plan imposes anything new beyond what is already expected under the PSI regime. Furthermore, organisations will need to consider the crossover between their obligations to make this information available for re-use under the PSI regulations and any future AI content licensing deal. Where PSI applies it could make lucrative, exclusive deals with AI firms tricky. Meanwhile, under Freedom of Information (FOI) law – which many institutions are subject to, much like their higher education counterparts – entry into the Government framework or other such deals will likely prompt information requests from the public about what is going on behind the scenes.

Charity law and governance

A number of the institutions named in the Action Plan are independent charities which operate at arm’s length from Government. In making any decisions in relation to the Action Plan, or indeed AI more generally, Boards of charitable institutions will wish to carefully consider their duties as charity trustees, including their overarching duty to act in the best interests of their institution, to further its purposes for the public benefit and to safeguard its assets.

Various factors are likely to play into Boards’ decision-making. While many arm’s length bodies receive some Grant-in-Aid funding, the general trend in recent years has been towards institutions receiving less public funding and needing to generate more of their income from exploitation of their collections, whether by means of charitable trading or non-charitable trading via a commercial subsidiary.

When considering any sort of licensing deal, key questions will likely arise as to:

whether the proposal represents an appropriate use of charitable assets, whether by the institution itself or any subsidiary, and whether any reconfiguration of the relationship between an institution and its subsidiary (particularly vis-à-vis licensing) might be required to facilitate participation in the scheme;
where trading is involved, an institution’s purposes, powers and the constraints which apply to charitable trading on the one hand and, on the other, any commercial subsidiary’s focus on revenue generation and the attractiveness of any proposal in that context; and
the interplay of any scheme with existing regimes such as PSI, and the extent to which the Government’s proposals align with an institution’s strategic priorities over the short, medium and longer-term.

Given their potential significance, Boards are likely to wish to give these matters careful thought in order to reach robust, well-reasoned decisions.

Charting a course

Overall, we have few details about the specifics of Starmer’s Action Plan in terms of how institutions’ assets will be utilised and on what commercial terms. Opinions are divided already though: the promise of unlocking the wealth of content held by national bodies on the one hand, versus the risk of underselling our heritage for the benefit of the tech industry. Furthermore, as this note has tried the scratch the surface of, the underlying legal considerations – while not prohibitive – are perhaps more finely-balanced than we have seen in other AI-facing sectors. As such, we will continue to offer our unique and leading expertise in the combined fields of charity law, intellectual property and commercial contracts to help clients navigate this potentially lucrative but complex new landscape.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.