(image sourced from: https://open.spotify.com/track/4i5hLY7mNIp70YhZveeItm)
Hello IP Law Class! I thought I would use this post to contextualize our discussion earlier on in the course regarding the connector model. The intersection between creativity and copyright is something I’m incredibly interested in, especially with respect to music sampling. Hip-hop/rap is one of my favourite genres and many songs in this genre deploy sampling (re(mixing) melodies from other, often older, songs to create new instrumentals). I believe sampling is a great example of the connector model in action. For an illustration see how Tom Scott’s “Today” (in video around 01:37) is used by Pete Rock in “They Reminisce Over you” (in video around 00:16). By sampling the upbeat, happy melody from “Today” , Pete Rock remixes (i.e. connects) a sobering, melancholic version of it for “They Reminisce Over You.” Sampling in it of itself can be seen as an art form. One may ask however, can sampling constitute copyright infringement, if so, what amount of sampling?
Pursuant to the Copyright Act a musical work “means any work of music or musical composition, with or without words, and includes any compilation thereof.” Section 3 provides the right to “produce or reproduce the work or any substantial part thereof in any material form.” Sampling, according to Wilson is “the process of digitally copying a portion of a preexisting recording and inserting this “sample’ into a new recording.” Sampling, as a musical medium likely falls within the purview of the Act. It is also important to note that the Copyright Act grants musical recordings two separate protections: (1) in the composition (including, lyrics, music, etc); and (2) in the actual sound recording (the affixed form) (Wilson). Sampling can be an infringement of copyright – if the sample “constitutes a substantial part of a work or a sound recording” (McKeown); “unless a substantial part of the work is reproduced there is no viable claim for infringement” (McKeown). Samplers can elect to argue fair use: here a court may look to the purpose of the use, the nature of the use, the portion used (i.e. is it substantial?) and the impact of the use on the copyrighted work (Wilson). Absent exceptions/defences, and music in the public domain it seems as though a license, or permission is required to legally sample copyrighted music.
Do you think the Copyright Act strikes an appropriate balance between the original composers and the connectors? Should we have carve-outs for sampling? This is a tricky debate no doubt, I’d love to hear your thoughts! This is just a quick glance at sampling, there are likely other important issues to discuss such as the de minimis defence.
Sources:
John McKeown (2016) “Canada: De Minimis Sampling and Copyright” (https://www.mondaq.com/canada/copyright/514828/de-minimis-sampling-and-copyright)
Stephen R. Wilson (2002 Journal of High Technology Law) “Music Sampling Lawsuits: Does Looping Music Samples Defeat the De Minimis Defense”
Copyright Act, RSC 1985, c 42
Communications Law