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Digital Music Sampling and Copyright Law: Can the Interests of Copyright Owners and Sampling Artists Be Reconciled? 

De la Torre, Carlos Ruiz, 7 Vand. J. Ent. L. & Prac. 401 (2004)

Copyright law governing digital music sampling is faced with two competing interests: first, the owners of recording and composition copyrights need to be reasonably compensated when their creative works are re-used by sampling artists, but secondly, sampling artists should have a reasonable degree of freedom to rework fragments of existing recordings at a reasonable cost. The purpose of copyright law is to “promote the Progress of Science and the useful Arts,” i.e., encourage creativity. Any potential solution to the sampling copyright problem should aim to achieve five goals: (1) set clear, predictable boundaries for sampling artists, (2) keep costs reasonable for sampling artists, (3) minimize the use of litigation to settle infringement questions, (4) minimize the difficulties involved in negotiating licenses, and (5) provide adequate economic benefits for copyright owners (so they will have an incentive to produce new works). The following alternatives have been proposed by various commentators as possible solutions to the sampling problem: compulsory licensing (based on qualitative and quantitative use), voluntary structured negotiation (licensing system based on good faith and fair dealing whereby the artist would negotiate with copyright owners in a predictable, established manner), the economic approach (weighing the various costs to copyright owners and samplers, i.e. access costs and administrative/enforcement costs), the pattern-oriented approach (where courts consider social and cultural patterns in assessing the merits of a fair use defense), and educational use (informative and educational value of sampling justifies the protection of sampling under the Copyright Act).

Each of these alternative proposals would achieve some of the goals discussed above, but it seems that none of these proposals would fully achieve them all. The pattern-oriented, education use, and the economic approaches seem to disproportionately benefit sampling artists while leaving copyright owners largely uncompensated. On the other hand, the voluntary structured negotiation approach has limited potential because it does not radically differ from the present system. Ultimately, the compulsory licensing schemes come closest to achieving the five goals.

Although compulsory licensing schemes do not completely eliminate all of the uncertainties involved in sampling infringement questions, they nevertheless seem preferable to the other alternatives because they generally offer more clearly defined boundaries for sampling artists, thereby minimizing the need for litigation and ad-hoc determinations. No other proposal even comes close to matching the potential for compulsory licenses in minimizing the difficulty of negotiating the terms of the licenses, while satisfying the economic interests of both copyright owners and sampling artists. In the end, the solution that balances the financial requirements of these parties, while minimizing the extent of their interactions, is probably the best one.

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