Foreign Determinationof Copyright Infringement And Eemption From Liability About Music Sampling

With samples and channels of sampling more and more diversified,music sampling has become a key part of the music production process in the digital age.Music sampling technology provides technical convenience for music producers to extract music materials from existing phonograms,and the transmission of audio and video on Internet social media provides convenient channels for the selection of sampling materials.Music sampling is based on the use of previous recordings and has caused many copyright infringement cases.At present,both the common law countries and the civil law countries have typical judicial interpretations of the infringement determination and liability exemption of music sampling.This is to fill the absence of the legislation and judicial decisions of copyright sampling and neighboring rights of music sampling in China.This paper consists of five chapters.The first chapter expounds the research background,purpose and significance of this paper,then makes an overall literature review of the research on music sampling and the legal issues related to music sampling,and makes a brief introduction to the research contents,innovation points and difficulties,and research methods.The second chapter is an overview of music sampling.The main contents include the definition of music sampling,the development history of music sampling and copyright disputes,aiming to explore the legitimacy and rationality of music sampling as a method of music art creation in music production.The third chapter analyzes the difficulties in identifying copyright infringement of foreign music sampling.Based on the precedents of American music sampling and the judicial interpretation of German music sampling infringement cases,this paper argues that there is a dispute over the classification of sampling infringement in music sampling copyright infringement cases.There are many problems in the use of substantive similarity test,including the applicability of substantive similarity test in the identification of music sampling infringement,the defects of "average audience test"and the disputes over the type of works applicable to substantive similarity test.The fourth chapter demonstrates the significance of the exception of copyright to music sampling which includes two aspects.That is the freedom of expression and freedom of creation based on the spirit of the constitution and the balance between the interests of the copyright owner and the public interest of the society.Then this chapter explores the ways to exempt music sampling from copyright infringement liability from three aspects:copyrightability of samples?de minimis and fair use.By comparing the differences between the United States and Germany in the ways of exemption of tort liability,this paper explores their interest appeals under the framework of their respective legal systems,so as to find the reasons behind their position of exemption of tort liability for music sampling,and to seek theoretical support for China in the infringement case of music sampling.The fifth chapter discusses the enlightenment to the identification and exemption of music sampling copyright infringement in China based on the above discussion.As for music sampling copyright infringement,the right of music sampling copyright infringement should fall into the right of reproduction rather than the right of derivative.In the music sampling tort identification should use the abstract separation method and focus on the expert opinion.In view of the extremely limited expression in music creation,the copyright infringement of works should be determined by the virtual-identity standard rather than the substantive-similar standard.As for exemption of tort liability for music sampling,our country needs to incorporate Transformative Use into the fair use system,so as to correct the limitations of our enumerated fair use system in dealing with technological development.The term quotation in Article 10(1)of the Berne Convention can be a way to defense.