What does this mean for the claim and AI landscape? 

The secondary copyright infringement claim brought by Getty Images alleged that Stability AI had infringed its copyright works by importing and/ or distributing in the UK the Stable Diffusion model on the basis that Stability AI had knowledge that it was an 'infringing copy' (under sections 22 and 23 of the Copyright Designs and Patents Act 1988 (“CDPA”)). 

The key question for the court is one of statutory interpretation, i.e. whether an ‘article’ could be an ‘infringing copy’ if it had never consisted of, stored, or contained a copy of the copyright works. 

During the trial, Getty Images argued that the Stable Diffusion model was an ‘article’ and could be an ‘infringing copy’ on the basis of s.27 CDPA, if "…it has been or is proposed to be imported into the [UK] and its making in the [UK] would have constituted an infringement of the copyright in the work in question…".

The argument being made is that had the Stable Diffusion model been made in the UK, it would infringe copyright works because it could not have been made without the use of the infringing copies.

What was found at Trial?

In the groundbreaking judgment, the judge ruled that an 'article' could be intangible, but because the Stable Diffusion model did not store any copy of the relevant copyright works (only the weighting related to them from the training), it could not be deemed an 'infringing copy'. 

The judge emphasized that the CDPA provisions required the article to be a "copy" and were not concerned with processes that produced articles.

Why has permission been granted?

Permission to appeal was granted because it was considered that the claim had a real prospect of success, concerned a pure question of law, on which the minds of reasonable lawyers could differ.

The judge held: “The point of law is both novel and important because it concerns how the provisions of the CDPA should be construed (and specifically the phrase "infringing copy") in the context of an AI model. This is not an issue that has previously been considered by any court. As the claimants submit, that novel point also has potentially far-reaching ramifications for AI models and intangible articles such as software more generally.”

However, the judge did point out that in allowing the appeal, this did not mean that she accepted that every one of the proposed grounds of appeal had a real prospect of success, but she saw no reason to salami-slice them in her judgment.  It was deemed much better that the claimants should have the opportunity to raise all the points on appeal.

It is worth considering, however, that the point of law is only determined in the context of the complex fact pattern of the case.  The Judge made various important findings of fact, partly in light of concessions by Getty Images.  The Court of Appeal will not (except in extreme circumstances) be able to overturn those factual findings at first instance and this will have a bearing on the decision the Court of Appeal is able to make.

Final point

Interestingly, in her decision the judge noted that the order should, in reference to the primary infringement claim, clarify the circumstances in which those claims were dismissed by setting out "…in circumstances where those claims were fought all the way to closing submissions and then abandoned".

This was so that there can be no later suggestion, whether in the UK or elsewhere, that the court has actually adjudicated on those claims, highlighting the judges awareness of the ramifications of her decision on the AI landscape, including what was not decided.