Study On Judgment Of Copyright Infringement To Digital Sampling Musical Works

Digital sampling has been one of the most popular creations in music field.In the music industry,people believe that digital sampling musical works are artistic collages,which are protected by copyright definitely.Some scholars believe that this kind of creation constitutes plagiarism,and is a copyright infringement.Therefore,infringement disputes concerning digital sampling musical works keep emerging.Digital sampling is a process of taking a small portion of a sound recording and digitally manipulating it as part of a new recording.Due to the complexity of this process and the ambiguity of the copyright of the sampled objects,the infringement comparison boundary of the digital sampling musical works cannot be determined,and the infringement judgment rules of the digital sampling musical works are also difficult to be unified.The copyright of the sampled object is the premise of judging the infringement of digital sampling musical works.In terms of the number of sampling,the number of elements sampled in a musical work may be infinite,but for the musical works sampled,the elements sampled only account for a small part of the musical works.The small number of characteristics of the samples requires full attention to the originality generated by the interaction and combination of melody,harmony and rhythm.Among them,melody,as the basis for the formation of a song,is the primary source of originality in musical works;As the auxiliary of melody,harmony can onlyreach the height of originality by reflecting the complexity of the composer's intelligence and emotion;Rhythm is the skeleton of songs,but rhythm is usually the physical embodiment of counting,rhythm,speed and so on,and it is the minor factor of the originality of musical works.However,the originality of music works comes not only from the above music elements,but also from the unique artistic creativity of music works formed by the combination of the above music elements.The characteristics of digital sampling musical works in the number of samples require that the principle of essential analysis must be used throughout the judgment of infringement,which is in line with the creation rules of digital sampling musical works.With the continuous change and deepening of Internet technology,musical creative form has undergone a remarkable transformation.Under the feature of“user-created content”,the public changes from the traditional music receiver to the active music creator,and the desire to achieve the freedom of expression granted by the constitution through music is increasingly strong.Therefore,when judging the infringement of digital sampling musical works,the core should be the principle of de minimis use that motivates musical creation,so as to promote the development of digital music industry,safeguard the public interests and realize the freedom of expression of citizens.As a general rule for judging copyright infringement of works,“contact +substantial similarity” is also applicable to judging copyright infringement of digital sampling musical works.In the specific path analysis of “substantial similarity”,on the one hand,we should start from the composition of digital sampling musical works,and form a judgment dimension unified by abstract separation method and overall perception method based on the principle of essential analysis;On the other hand,we should start from the aural artistic nature of music works,taking the principle of de minimis use as the basic,and using the audience test method to apply.In the specific judgment,focusing on the market profit and damage elements,the audience inspection method with ordinary audience as the main body and music experts as the auxiliary body makes the reasonable identification of the copyright infringement of digital sampling musical works.For the digital sampling musical works whosesampling fragments are difficult for the general audience to identify,it should be judged that the sampling is de minimis and will not constitute copyright infringement.At the same time,the digital sampling musical works in the fair use of the four elements in the test has a suitable space fully,the digital sampling creation behavior of non-commercial songs of those amateur artists and the digital sampling musical works that are obviously conversion use have the possibility of applying the fair use system to the copyright infringement defense.