99 problems but a riff ain't one : How sampling helps copyright promote originality

Abstract

This legal policy thesis asks: Is sampling so inconsistent with copyright that it warrants a unique system? Sampling is the musical practice of arranging new recordings from existing recordings. Often, it conflicts with copyright, a legal system that aims to encourage progress and innovation, primarily by granting exclusive rights as incentives to create and distribute original works.

Two countervailing positions in existing literature articulate the conflict between sampling and copyright. The first views sampling as an appropriative practice that subverts copyright safeguards against unauthorised copying and adaptation. If this is true, then appropriation art cannot be reconciled with copyright law in any stable, lasting or meaningful manner. The second views copyright as an excessive restraint on creativity, a leash on artists. Scholars holding this position point to copyright's longstanding discrimination against sampling, evident from US copyright cases restricting 1990s hip-hop artists and admonishing one sampling artist with biblical commandment: 'Thou shalt not steal'.

This thesis argues that sampling can align with the purpose of copyright to encourage progress and innovation. It shows how sampling is consistent with originality, the core concept that separates the copyright wheat from the unprotected chaff. Originality calls not for the conjuring of material from thin air, but rather the rearrangement of prior works, genres and conventions. By locating rearrangement at the heart of originality, we can see that sampling can contribute to the body of original works and therefore the purpose of copyright.

In doing so, this thesis shows that sampling conflicts with the operation of copyright, as expressed in international treaty, national laws and industry conventions. While amending the operation of copyright is difficult, it is possible and indeed desirable to reform copyright to encourage rearrangement, not because it enables sampling, but because it promotes originality.

Building on the concept that the rearrangement of past material is the foundation of originality, this thesis explains two potential policy responses to promote originality. Encouraging transformative use, as a conceptual foundation for fair use exceptions, can promote the rearrangement of existing original works into new original works. Likewise, ex post monitoring, as an alternative to ex ante licensing, can enable tolerated uses, incremental originality and distributed innovation at the scale of digital platforms. Show more