| With the advent of the digital age,a large amount of digital material has been efficiently disseminated on the Internet,and the connection between the creative achievements of others and self-creation has become closer.In the field of music,the development of digital technology has transformed the storage and dissemination medium of music from the traditional through certain material carriers to digital carriers,and the development of composition technology has led to the emergence of new music creation methods such as music remixing,music collage,music sampling,etc.Among them,digital music sampling has rapidly become one of the mainstream creation methods in recent years.Digital music sampling is a form of composition that uses digital technology to intercept fragments of previous works and apply them to new music through technical processing in terms of rhythm and pitch.The emergence of this form of composition allows for the sharing and continuation of works and enriches the creative possibilities.However,because the process of digital music sampling requires the use of prior works,it has a natural "genetic defect" in terms of copyright,and unauthorized sampling may constitute infringement,and when digital music sampling involves infringement disputes,it is often defended through the fair use system,thereby seeking immunity.Fair use is often used as a link between the public interest and individual interests to avoid monopolization or unbridled distribution of works.For music samplers,it is critical to determine how their conduct is determined and whether fair use can be applied to that conduct.The process of creating digital music samples inevitably requires the use of others’ works,so there is controversy over whether digital music sampling is fair use and how to determine fair use for digital music sampling.At present,although there are few digital music sampling fair use disputes in China that have reached the litigation stage,it does not mean that there is no value for research.On the contrary,Germany,the United States and other countries where the music industry is more developed and started earlier have different legal provisions and judicial application on the fair use of digital music samples,which are worthy of reference and consideration.If we want to truly solve the dispute,we should learn from foreign advanced experience,combine with China’s specific situation,and seek to improve the specific path of digital music sampling fair use.The paper is divided into the following five parts: the first part,the theoretical explanation of digital music sampling.Firstly,the concept of digital music and digital music sampling is defined,and digital music sampling and music remixing,music collage and other similar music borrowing creation are identified and analyzed,and the characteristics of digital music sampling are derived,and its manifestation and legal properties are analyzed.In the second part,the current legislative and judicial status and problems of fair use determination of digital music sampling are discussed.This part summarizes the problems of fair use of digital music copyright in China,which include the difficulty of evaluating the reasonableness of music sampling in the legislative model of fair use,the limitation of the application of the relevant provisions to music sampling,the obstruction of the application of limited conditions to digital music sampling,and the mixed criteria for judging whether digital music sampling is fair use.The third part is about the experience and inspiration of foreign typical countries on the fair use of digital music sampling.This part describes the legislation and typical cases of the United States,Germany,the United Kingdom,Japan and other countries on the fair use of digital music sampling,and summarizes the inspiration for the fair use of digital music sampling in China.In the fourth part,the suggestions for improving the fair use of digital music sampling in China are presented.Based on the current legislative and judicial situation,problems and inspirations brought by foreign experiences discussed in the previous section,this section tries to put forward suggestions to solve the problems existing in the determination of fair use of digital music sampling copyright from the aspects of improving the legislation related to fair use of digital music sampling and improving the determination standards of fair use of digital music sampling copyright. |
