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Sampling and the law

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Re: Sampling and the law

Postby blinddrew » Sat May 04, 2019 2:44 pm

So copyright expanded, and this was good, because it recognised the value that music and theatre and visual arts added to society as a whole. In time it also included movies/TV, software and computer games. And this was also good because these things too are art and deserve their recognition.

But it also expanded in other ways that were less good, and this is where we start to get into some of the nuances of the discussion.
It expanded in duration, up and up. Pausing on the words of wisdom* of Thomas Babington Macaulay in 1841 it subsequently even expanded beyond death. And there we come back to purpose. If the purpose of copyright is to promote the creation of new works, how many works do we expect a person to create after they have died?
Hopefully, unless the common traits of zombies have been vastly misunderstood, none.
So why would a copyright exist longer than life?
Indeed, expanding it to the limit of life is questionable of itself for the reasons mentioned a couple of posts further up.

Copyright also expanded in other ways, originally you had to register your copyright for it to be valid. No registration, no copyright. This has now changed to be that a copyright exists as soon as a work is set in some form. Whether that's scribbling down the lyrics with a quill or recording a melody on your ipad.
Even so, to bring a suit of copyright infringement in the US you still need to register that copyright.
On the positive side this had made things much easier for the general creator, and less burdensome for the government - good - but also means that we no longer have a general record of works under copyright. This makes it difficult to find out who owns content and when limitations and restrictions expire. Add an extra level of complexity for each territory the work is registered in...

Another way in which copyright has expanded is in restrictions around what you can do with a copy once you have legally obtained it. The DMCA, for example, makes it illegal to attempt to break a means of copy protection on a copyrighted work even if no copyright infringement takes place. To use a UK example for a moment, it is illegal to rip a copy of a music CD, legally purchased, to make a copy of the content for your personal use on your phone, laptop, sonos etc. It was legal for a few years, but is back to being illegal again.

When we look back at our core purpose, and that balance of public right versus private monopoly we can see how some of these developments are troubling and can lead to a lack of respect for the law.

This near-constant expansion (restrictions in copyright growth are very few and far between and don't tend to have lasted long), has also created something of a culture of ownership that regularly throws up challenges. Hardly an election season goes by without some act declaring that a campaign 'can't use my music' because they don't like what that candidate stands for. This is, of course, hardly ever actually true, as the event(s) where the music was played is covered by a venue licence with the relevant collection agency.
The monkie-selfie case which made a temporary star of Naruto has left a much longer trail of pointless litigation. US copyright law is quite clear that a copyright can only be created by a person, not a monkey, but still the lawsuits piled up in the mistaken belief that 'somebody must own the copyright'.
This last bit raises a very interesting point for the near future (but a separate discussion) as well: if copyright can only be held by a person, where does a work created by an artificial intelligence stand? One to watch in the next couple of years.

Anyway, now that we've established a bit of history and background, we can talk about fair use and then, ultimately, get back to the issue of sampling. :)


* http://homepages.law.asu.edu/~dkarjala/ ... eches.html
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Re: Sampling and the law

Postby Guest » Sat May 04, 2019 4:45 pm

Excellent explanation Drew.

I understand that under U.S. law your can use a copyright work for parody, satire, criticism etc. It is strange that you can make fun of a work but not a sincere homage or reference.

A blunt start would be:

The quantity of the work used

The amount of creativity involved

Was the excerpt transformed or recontextualized?

Does the copyright holder lose income or business as a result?

Does the new use defame or imply something about the owner or performer?
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Re: Sampling and the law

Postby blinddrew » Sat May 04, 2019 4:53 pm

Thank you. I'm about to start digging into fair use - but a) I had some other stuff to do (listening to and then giving up on a very disappointing set of recordings from thursday night) and b) I thought I'd give everyone else a chance to catch up and register their challenges / disagreements. :)
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Re: Sampling and the law

Postby Eddy Deegan » Sat May 04, 2019 5:41 pm

With regards to the specific sampling issue, there are two broad categories of sample use, namely that which is recognisable from the original and that which isn't.

Of course that's a judgement call in some cases, but in others not so much (ie: if you drop some Michael Jackson into a granular synth and make a soundscape out of it which bears no resemblance whatsoever to the original).

I have no issue with re-use of copyright material where the result is completely indistinguishable from the original. As for the rest, it's either pay for the rights to use it or have a chat in court I'd say.
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Re: Sampling and the law

Postby CS70 » Sat May 04, 2019 6:22 pm

Still Vibrations wrote:CS70 - you are manipulating the discussion. You say copyright infringement and theft are equivalent

Again, it would be nice if you actually read the posts of people with whom you think you disagree.

May 03 2019 17:46 (aka yesterday)

CS70 wrote:
However, sure - they are technically different type of crimes. So what? :D

Watchmaker then was way better than me at expressing the point:

Watchmaker wrote:Theft and copyright share elements in that they both revolve around issues of ownership.

'nuf said.
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Re: Sampling and the law

Postby CS70 » Sat May 04, 2019 6:33 pm

blinddrew wrote:
CS70 wrote:Funny thing I guess this is theoretical for many people here but for the project I'm working right now these are burning questions, so I find myself to study stuff like the "Best Practices in Fair Use" at http://cmsimpact.org/code/documentary-f ... -fair-use/

That's why to me is important to avoid wishful thinking and actually see things how they are.. my neck's gonna soon be on the line and I really need to understand the matter. :)
We have two similar but parallel purposes here, you need to know how things are now, in legal black and white; I'm talking about why they are like that and whether that is the best way for them to be. :)

In truth, I was merely commenting on the original video, namely that most examples there where of the "sampled but unrecognizable audio" type, for which there's really little to discuss (they are just fine, as nobody can recognize them).

I also reacted to you argument "it's obsolete because technology allows everybody to copy stuff today " (I am obviously simplifying and may of course have misunderstood, but I dont recall you replying to that :)). And by all means it's done in a all friendliness, just like with anybody else here.

What I think it is interesting is using material which is perfectly recognizable - and there I think we're on the same page. I've been looking at what's now the law and, more importantly, the reasoning and balance behind it. As if it should and how could be changed for the better, I certainly don't have pre-packaged solutions (and if anything, if I let my current predicament influence my intellectual honesty, I'd much rather the reasoning and the law were different :-)). I do not have a conclusion yet, and I'm gonna read your ideas with interest, as always (it's fun!). I like good facts and solid reasoning to lead the way to whatever conclusion I may find, and not the other way, and I think that's mostly a shared approach.
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Re: Sampling and the law

Postby blinddrew » Sat May 04, 2019 7:06 pm

CS70 wrote:I like good facts and solid reasoning to lead the way to whatever conclusion I may find, and not the other way, and I think that's mostly a shared approach.
Likewise. I tend to find that there's a lot of myth and misinformation about copyright so hopefully I can set out a few things here (and people can put right anything I've got wrong) and then from there we can talk about how things could change, and whether they should. :)
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Re: Sampling and the law

Postby blinddrew » Sat May 04, 2019 7:22 pm

Ok, let's talk about fair use. This wasn't a concept included in the Statute of Anne but evolved from a case 30 years later, 1740, that established 'fair abridgement'.
Fair Use in the US was common-law until it was formally incorporated into the Copyright Act of 1976.

Before we go any further though, it's importantto recognise that Fair Use isn't the only mechanism that grants exceptions to copyright. There are other exceptions and limitations that go from the Berne Convention in 1886 to the Marrakesh Treaty in 2013. Typically these look at things like educational use, impacts on competition and markets, and exceptions for the visually impaired.
Similarly there are a few other things that can’t be copyrighted. We’ve already covered works created by a non-human, but facts and ideas are also non-copyrightable. In most western countries the law is not subject to copyright and many products created by government from tax-payer funds are also either not-copyrightable or are submitted straight to the public domain.

But anyway, Fair Use, why does it exist in the first place?
Well, Title 17 of the USC, section 107, says, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

However this is, obviously, not a blanket exception. In order to help a court determine whether a use is fair, the code goes on to say, “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.”

These factors were established largely following Folsom vs Marsh in 1841, the principle established that, “In short, we must often ... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”
It’s important to note that a court is free to also consider other factors, but those aren’t defined in statute.
Good luck arguing a Fair Use defence based on something other than one of these though! :)

Let’s look at these factors in turn.
Factor one covers things like critique, news reporting and educational stuff. I can quote a chunk of Ed Sheeran’s lyrics provided I can clearly demonstrate how it either advances knowledge or the progress of the arts through the addition of something new – whether that be because it is newsworthy or because it offers some educational insight into the song-writing process or what have you.
What I can’t do is use a pseudo-educational piece as a hook to try and drive traffic to my website for the purposes of self-promotion or adverting revenue, for example.

Another consideration in factor one is whether the use is ‘transformative’. Campbell v. Acuff-Rose Music Inc established the concept of a parody* as a form of fair use for example. Blanch v. Koons is another interesting case that established how the same piece of visual art (a photograph in this case) could be transformative when used in a collage painting.
The Campbell case and LA Times vs Free Republic also established that although using a work non-commercially would assist in the defence of fair use, it was not a definitive stance. However the Campbell case also established that commercial use did not automatically disqualify a fair use defence.

From this we can clearly see that the first factor of Fair Use is rarely going to be a clear-cut case, we’ll come to the other factors in due course, but it’s clear there as well.
Which is why, and this is critical, you don’t need to ask permission to use a work in Fair Use. You may be able to, you may feel you should, but you don’t need to.
You may need to defend your decision in court though.

This post is long enough, we’ll tackle the other factors in subsequent posts. Probably tomorrow as I have a movie to watch this evening. :)

* It's important to remember that parody is not the same as satire, farce or any of a number of other different forms of humour. A parody is self-referential, in that it only works if it is incredibly like the thing it is parodying - hence this form of defence.
As an aside, many people assume that Weird Al Yankovic gets away with his comic songs because of the parody defence but actually some of these are not parodies. American Pie and Star Wars, for example, do not mock each other in their essence so this isn't really a parody; Smell Like Nirvana though, clearly is. In all cases he has established permission first, but there's some interesting stories of some of the challenges he's had where the copyright owner (the label) and the artist have had different opinions - James Blunt and Coolio being most prominent examples.
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Re: Sampling and the law

Postby blinddrew » Sun May 05, 2019 4:13 pm

Everyone caught up? Anyone still reading?
Oh well, let’s crack on with the other Fair Use factors.

Factor 2
looks at the nature of the work, and the first thing to note is that the quality or artistic merit of the work is not a relevant here. But it does consider things like whether a work is non-fiction.
A significant aspect at play here is the social usefulness of freely available information when weighed against the appropriateness of the fixation of a copyright. Remember here, facts and ideas are not copyrightable, it’s the fixation of those things that becomes a copyrighted work.
One of the key pieces of caselaw here is Time Inc vs Bernard Geis Associates. This eventually concluded that although Time Magazine had bought the copyright to the Zapruder film of the JFK assassination, the public interest was such that the use of stills from the film in a history book was Fair Use.

There’s also considerable debate about previously unpublished work under this factor. The debate generally revolves around the way that certain cases seem to have imported moral rights or privacy rights into the field of copyright.
If one considers the purpose of copyright as set out at the beginning, there can clearly be no incentive to create based on the copyright of an unpublished piece from a deceased author. That a piece may not have been intended for publication, or may contain content that the creator did not want to make public, arguably should have no merits in an discussion about copyright - no matter how compelling it may be in other areas.
This last bit has been left sensibly open by an addendum to the provisions that basically says it doesn’t matter if something is previously unpublished or not, as long as it’s considered Fair Use on analysis of all the factors.
Interestingly some people have taken this addendum to mean that it’s only Fair Use if it meets a test of all four factors, but that’s an incorrect reading. It just means that all four factors must be considered.

Factor 3 is all about how much and how significant. Very relevant, one might think, for a discussion about sampling. But one could easily be mistaken. We’ll come back to that later…
Basically the principle is that the less that has been used, the more likely it is to be considered Fair Use.
But it’s not cut and dried; using a small amount of a work can still be unfair use if it is considered the heart of that piece of work.
So using the five seconds of the hook of a-ha’s Take On Me, for example, would be unlikely to be considered fair use as this is such a signature part of the song.
By contrast, video-taping an entire episode of a programme or film for the purposes of ‘time shifting’ (i.e. for personal use to watch later), is considered Fair Use.
Likewise, although the Google Books project scans the text of the entire book, that fact that it only uses short snippets for the purposes of searching has led to a determination of fair use.

Finally factor 4 looks at the effect on value. Or how much the new use affects the ability of the original copyright owner to make money out of their product. This looks not just at immediate market harms, but also the potential market as well.
A key thing here is that the requirement is for the copyright owner to demonstrate these harms. If I’m successfully selling ABC and someone takes a copy of that to market resulting in my sales dropping off, that’s a financial impact.
If, on the other hand, I’m sitting on a copy of ABC and have done nothing with it, and the same thing happens, that’s going to be much harder to prove a harm. I’d have to argue about potential markets and, given the burden of proof here, would probably need to show some kind of existing plan to take ABC to market.
Sony vs Universal, or the Betamax case, was pretty instrumental in setting the bar here.

Generally courts look at two kinds of impact: firstly the direct substitution (or ‘market replacement’) of a product (buying a copy B, rather than the original A),
But also the effect on potential licensing (company A has a license to make copies, company B has illegally entered the market by selling unlicensed copies).
The final key part of this factor is the recognition that market harm does not automatically mean something is not Fair Use. The obvious case here being critique or parody – copyright is not a defence against adverse criticism.

Following Harper vs Row (regarding President Ford’s memoirs) the supreme court labelled this the most important element of Fair Use, however future cases (particularly the Campbell case mentioned previously) has restored a bit of balance to all four factors.

in Summary
So, a couple of things to wrap up the generalities of Fair Use before we go on to sampling.
Firstly, a creator cannot pre-emptively deny or revoke the right of fair use through contract or other notification. I.e. I can’t stick a label on my soundcloud account to say that none of these works are eligible for Fair Use. Nor could soundcloud make that a contractual condition of uploading my songs.
However, a contract can trump Fair Use if a case is brought on that basis. I.e. if I request permission to use a piece of work, and sign a contract to say that I will only use parts A, B and C, but then subsequently also use parts D, E and F instead, then I might see the wrong side of a breach of contract lawsuit, regardless of any Fair Use defence.

Finally, the determination of Fair Use requires an examination of all four factors. It is not enough to simply say a work is non-commercial for example if it would fail on other factors. Conversely, a work may fail on three factors but still be deemed fair if it meets another. Additionally, as mentioned earlier, a court can choose to look at other factors as well.

So as we can clearly see, Fair Use is something that might seem simple in principle, but can get very complicated very quickly.

Next up: sampling…
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Re: Sampling and the law

Postby blinddrew » Sun May 05, 2019 4:17 pm

Sampling and copyright.
Up to 1991, sampling generally had a blind eye turned to it in most of the genres where it featured.
And when you consider the four factors we’ve been through above, you can see why. A short snippet of audio recording (assuming it is not a key riff), used in part of a wider piece is likely to be transformative, especially if that recording was say of a very different nature (a recording of a speech perhaps), and very unlikely to have a significant impact on the market for the original work.
So I might take a snippet of Tony Blair saying, “Education, Education, Education” and use it in an otherwise-original song about the impacts of catchphrases in politics, in such a way as to parody the original speech.
So far, so fair use.

But this changed with Grand Upright Music vs Warner Bros Records in 1991. Biz Markie sampled a bit of Gilbert O’Sullivan and it went to court. There was some important* shenanigans about whether there was a valid copyright on the piece, but once that was settled Judge Duffy ruled against Warner Bros.
Interestingly this decision has been very heavily critiqued by legal minds because Duffy began his written opinion with ‘Thou shalt not steal’ – thus demonstrating (in the words of the UCLA) “an iffy understanding on the part of this judge of the facts and issues before him in this case.”

Anyway, the ruling had a big impact on music at the time. Sample clearance fees went through the roof (some rights holders wanted 100% of royalties) and instead artists either massively scaled down their use of samples (one or two per song at most) or recreated similar sounding pieces from scratch with new songwriters and musicians.
It was this case that created the idea of ‘legally cognizable appropriation’. That is to say, if you can recognise it, you need to license it. However it still allowed the idea of ‘de minimis’ for samples that were sufficiently short or unrecognisable, “the law does not care about trifles”.

It’s a fairly common myth that this is still universally the case, but in 1994 the 6th Circuit appeals court changed that in Bridgeport Music vs Dimension Films.
NWA had sampled a two-second chord from Funkadelic’s Get Off Your Ass and Jam, lowered the pitch, looped it five times, and used it in 100 Miles and Runnin’. No permission was requested or compensation paid.
This went to court and the initial ruling was that no violation of copyright had occurred, for all the reasons outlined above.
But on appeal the court reversed that decision and said that the copyright owner of a sound recording had the exclusive right to duplicate that recording – regardless of length. “Get a license (sic) or do not sample” was what the court actually wrote. It subsequently said that it should not be seen as undermining Fair Use however it has had a significant impact on how sampling is seen in the music industry as a whole (the sixth circuit covers Nashville).
This decision effectively nullified the ‘de minimis’ doctrine in the 6th circuit, but it has been specifically rejected by the 9th circuit (which covers California amongst other states) and a number of district courts (including New York).
The case was also cited, but not discussed, in Germany during the Metall auf Metall case involving Kraftwerk in 2008.

And that is pretty much where we stand now. Although you could make a very strong Fair Use case for using samples, particularly in the 9th Circuit, the risk of being sued in the 6th is such that we are now pretty much in the world of ‘license or don’t sample’.


Hence there is the potential for a very interesting and complicated discussion on sampling, fair use, and the purpose of copyright. And some would argue that this is just one way in which copyright should be re-examined with a view to reform.


* important because if there’s no copyright, or no legal standing to bring the case, then you don’t even have to get into Fair Use. No copyright = no infringement.
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Re: Sampling and the law

Postby Guest » Mon May 06, 2019 10:04 am

Excellent research Drew and really interesting and informative - thank you for doing the research.

I would still like quoting and sampling to be legal if it is used creatively and in small doses. As said before, it is part of our culture. I blatantly use transformations of Interstellar Overdrive and I want the listener to recognise it. The reason I don't care is the theme is almost identical to the introduction to My Little Red Book by Love. and even the Steptoe and Son theme.

Within the Western classical tradition the composer would want the references recognised. If you take Variations on a theme of Beethoven by Brahms, I doubt anyone would buy the Brahms work as a substitute for the Beethoven work. Some people over identify with their creative work. Some composers (including me) don't sense the work was written by them when it is completed and is heard it in a concert. I can see no reason why it should not be legal to write a work 'Piano Sonata - (includes elements from Bartok's Concerto for Orchestra)'. Fair use is a good principle.
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Re: Sampling and the law

Postby wireman » Mon May 06, 2019 10:12 am

I didn't have the will to check all the previous posts but in case it is of interest and not already noted there is a relevant paper here
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 10:36 am

Useful addition from the UK perspective there Wireman. I'll read the full paper later, thanks.

As a broad guideline, the UK tends to have much weaker 'fair dealing' protections than the US 'fair use'. But the statutory damages are higher in the US... ;)
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Re: Sampling and the law

Postby Guest » Mon May 06, 2019 10:44 am

Here is a good summary in New Yorker magazine from 2014:

https://www.newyorker.com/magazine/2014/10/20/crooner-rights-spat

Thanks for the link Wireman, I shall also read it later, it looks really informative.
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Re: Sampling and the law

Postby degraye » Mon May 06, 2019 1:08 pm

Still Vibrations wrote: Do you really want creativity to be defined by smart-ass attorneys and juries not qualified for the task?

No of course not, you are completely missing my point. I quote myself:

degraye wrote:If people were honest to begin with, the problem would never arise and laws (with their inherent imperfection and bluntness) wouldn´t be needed and attorneys would be out of work.

To counter dishonesty we construct complicated "solutions" i.e. laws and as a consequence of that we get attorneys and the ball is rolling.

Of course I understand that´s how the world works and this is a not a perfect world.
But the more people being honest, the less laws and attorneys we need.

In other words, IF people want less laws and attorneys we can all start by being more honest.

I use simple words to describe this with a purpose – if we simplify things and get down to the core of problems, solutions will be easier to find.

So the underlying question is: how do we get people to become more honest?

When it comes to this particular subject, Sampling, I think The Elf has a very good point:
The Elf wrote:Record your own music (with or without 'references') and the problem goes away.

It really is that simple.
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 1:15 pm

How do you feel about sampling something that's out of copyright?

N.B. this is a genuine question. You can tell I think this is a really interesting subject. :)
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Re: Sampling and the law

Postby degraye » Mon May 06, 2019 1:39 pm

blinddrew wrote:How do you feel about sampling something that's out of copyright?
If the original creator is long gone dead, just state the source and it´ll be fine I would say (but who am I to say to begin with :) )

The key is to always state the source and if you make money out of it, give at least half away to homeless people, cats or go found a synth library where anybody can use the machines and make new music.
I.e. give something back of what you gain and plant new seeds (and I mean this without any political view whatsoever, just common sense) and things will sort themselves.

blinddrew wrote: N.B. this is a genuine question. You can tell I think this is a really interesting subject. :)
I can tell... hehe. Thanks for your exhaustive digging, though I must admit I didn´t read it all ;)
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Re: Sampling and the law

Postby Guest » Mon May 06, 2019 1:49 pm

degraye wrote:If people were honest to begin with, the problem would never arise and laws (with their inherent imperfection and bluntness) wouldn´t be needed and attorneys would be out of work.

To counter dishonesty we construct complicated "solutions" i.e. laws and as a consequence of that we get attorneys and the ball is rolling.

Of course I understand that´s how the world works and this is a not a perfect world.
But the more people being honest, the less laws and attorneys we need.

Collage, quotation, reference, sampling and variations - all common in Western creative arts - have nothing to do with "dishonesty". You have made a senseless equivalent. You have not explained why these creative techniques are inherently dishonest, you seem to believe your opinion is an a priori truth.


degraye wrote:The key is to always state the source and if you make money out of it, give at least half away to homeless people, cats or go found a synth library where anybody can use the machines and make new music.
I.e. give something back of what you gain and plant new seeds (and I mean this without any political view whatsoever, just common sense) and things will sort themselves.

That is not "just common sense" , it is ill thought out nonsense - or was it an attempt at a joke?

All the things I mention are part of our culture - I am not giving half my income to charity because I quote something.
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 2:19 pm

Let's keep it civil and polite please folks. We're just setting out a couple of starting positions here. :)

I suspect we all agree that citing sources is always a good thing? Well, it is from a moral point of view, probably not from a legal point of view. Which lobs up an interesting challenge...

To set out my starting positio, copyright terms are Life + 70 years at the moment (UK and US, broadly speaking). I'd like to see this roll back to the original 14 years with an option to extend another 14 years. In fact, given our longer lives now, let's give it another option to extend on the top of that. That gives you 42 years of monopoly to get value out of your work before the public get their half of the deal and the public domain increases.
And I'd like to see the '91 and '94 decisions on sampling rolled back so the standard four-factors of Fair Use were the determinants, rather than two pretty odd appeals court decisions.
There's a couple of other really technical things that I'd like to see change as well but I don't want to bore you all even further! :D
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Re: Sampling and the law

Postby Guest » Mon May 06, 2019 2:30 pm

wireman wrote:I didn't have the will to check all the previous posts but in case it is of interest and not already noted there is a relevant paper here

Just finished it, really interesting and excellent overview. I think this is a good summary:

"It is clear that music sampling is an issue, which has not been given the necessary attention by the legislators. Even though independent reviews have recommended that the CPD Act should be modified to include music sampling as an exception under the fair dealings section. However, no such changes have been made and the legislators have clearly ignored the subject, which is why it is still unclear whether music sampling to a certain extent can be legally accepted."
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