Research On Copyright Law Regulation Of Digital Music Sampling

With the development of digital technology,the methods of music creation have improved a lot.And digital sampling,as one of those methods,is used widely.It is a technique of taking a portion or sample of previous sound recording and reusing it in making new sound recording.The portion taken could be reused directly,or it could be repitched,sped up or slowed down,or edited in other ways.Because music genres like hip hop and electornic are becoming more and more popular,digital sampling is widely used in music creation and making.And development of digital technology has lowered the difficulty of creating music and the number of musicians has increased a lot,so the need for digital sampling is increasing,too.Even though a single sample might not take up much space in new sound recording,cases of digital sampling can be found everywhere,and it's necessary for copyright law to deal with this situation.The first chapter of this article introduced the concept of digital sampling and its current situation,and then led to the main dispute on how to regulate the issue of digital sampling infringing legal rights.Because the practice of digital sampling concerns copyright,performer's right and producer of sound recording's right,there is a high risk of infringement,which leads to the dispute on how to regulate its potential infringement on copyright and related rights.There are two major opinions on this issue.The first is that any digital sampling on sound recordings constitutes infringement and the second is that infringement should be decided by applyingtraditional copyright infringement rules,applying substantial similarity to decide infringement and fair use to defend.For example,because sound recording is regarded as original work in United States,both standpoints are supported by different courts of appeals,leading to a circuit split in United States.Though digital sampling is an innovative technique for music creation,in the eyes of music it can be split into taking,editing and reusing,while in the eyes of law it should be regarded as reproducing and adapting,and the act of reproducing is at the heart of digital sampling.As a result,the core issue that this article is analyzing is how to regulate on digital sampling's potential infringement on the reproduction right of sound recording.The second chapter of this article introduced and analyzed different foreign rules and judicial practice on digital sampling's potential infringement on the reproduction right of sound recording.Because the thought difference between common law system(like United States)and civil law system(like Germany),their rules about copyright and related rights are different,and their judicial practice about digital sampling are different.United States uses copyright to protect sound recording and open-ended “fair use” rule to limit copyright.In Bridgeport case,the Sixth Circuit Court of Appeals changed the traditional substantial similarity rule and held that all digital sampling constitutes copyright infringement,no matter how small the portion taken is.Later in VMG Salsoul case,the Ninth Circuit Court of Appeals contradicted to this opinion and reapplied substantial similarity and de minimis.So United States is facing the challenge of split court opinions on rules to decide infringement.Germany uses related right to protect sound recording and strict “free use” rule to limit copyright.In Kraftwerk case,Germany Supreme Court held that digital sampling infringed rights of producer of sound recording,based on related right's aim to protect producer's investment.But Constitution Court allowed free use to apply to digital sampling,based on balancing the constitutional value of related rights and free use rule.So Germany facing the problem that whether free use can be applied to digital sampling and how to apply.The third chapter of this article combines foreign regulating methods on digital sampling and China legislation and judicial practice,analyzed whether these foreignregulating methods can be applied in China.First,the bright line “digital sampling equals to infringement” rule is hard to apply in China.Though Chinese copyright law also uses related right to protect sound recording,the bright line rule means that sound recording should be given higher protection than musical works,and digital sampling is so legally special that it should be controlled in a stricter manner.However,these implications are not true.In Chinese copyright law,there is no higher protection for sound recording and the heart of digital sampling is an act of reproduction.As a result,no matter an act of reproduction aims at musical work,performance or sound recording,its potential infringement cannot be decided by the bright line rule.Second,substantial similarity can be applied to digital sampling on musical works,and fair use can be applied to digital sampling on sound recordings.However,China copyright law only listed 12 fair use situations.Even though digital sampling meets the fair use criteria established in Regulation on the Implementation of Copyright Law,it's hard to fit digital sampling in those fair use situations.And this is the major obstacle for China to deal with digital sampling's potential infringement on the reproduction right of sound recording.The fourth chapter of this article analyzed current available rules for digital sampling issues and give suggestions for their explanation and application in digital sampling cases.First,in terms of fair use,China should make use of the ongoing amendment of Copyright Law,combine the four-element fair use rule of United States,other fair use determination elements like de minimis and transformative use with three-step method in the amendment,reasonably expanding the application of fair use.Second,for those digital sampling which consists of infringement,in order to improve the efficiency of music licensing market and encouraging musicians to pay for licence,the statutory license for production of sound recording should be expanded from covering songs to creating new pieces of music,allowing samplers to pay for licence.What's more,because this statutory license is likely to be deleted in the amendment,China need to design a new system to balance the interest of copyright holders,related right holders and music samplers,easing the tension among them.A new,more flexible compulsory license system should be considered,so thatthe law can respect the will of copyright holder,protect the financial benefits of preexisting right holders and encourage music creation,facilitate the development of diverse music.