The Problem of Digital Sampling in the Music Industry: Fair Use Exception

 Abstract

The topic outside of Fair Use and the current period of sampling being employed as a method of production in the music industry will be covered in the current paper. It will examine the various legislation of the nations with relation to the defence of copyright holders' rights. Although there is a chance that this exception will be abused, it has been determined that any abuse has been successfully stopped by the protections that the courts have gradually adopted.

Introduction

Since the 1970s, the music industry has seen a highly rapid transformation as a result of disruptive technologies that allowed for newer forms of creative content consumption. In the 1980s, the music industry transitioned from analogue vinyl records, popularly known as LPs, to compact discs. 1 With the introduction of the Internet, listeners could now get music on demand thanks to ITunes and other early players that consolidated the industry by taking advantage of the Internet's technological capabilities.

Copyright Infringement

A legal privilege known as an intellectual property right is given to owners for a set amount of time in order to safeguard their unique creation against illegal exploitation. One of the intellectual property rights, known as copyright, is automatically granted to the writer or creator of an original work, giving them the sole authority to reproduce and distribute the work.

Copyright is a negative right that grants the owner exclusive control over his or her creations free from interference from third parties. An infringement of the copyright in the Work—the exclusive right to reproduce and distribute the copyrighted work—occurs when the Work is used or exploited by anybody other than the owner without that person's consent. Section 51 of the Copyright Act, 1957, is the law in India that controls copyright infringement.

Section 51- Permitting a location for the distribution of the Work to the public for a profit;

Unauthorized use of the exclusive rights of the owner of Copyrights under the Act by any other person;

Create, offer for sale, or employ copyrighted work without the owner's consent;

 Dissemination or display of counterfeit copies for commercial or individual gain;

Sampling of Music

Both a blessing and a curse for the music business is digital sampling. Its entry into the consumer market was heralded as both a significant technology advancement for the music business and a cunning plot against musicians. Digital sampling, according to copyright holders and studio musicians, deprives them of reasonable pay for the exploitation of their creations. Recording artists started incorporating samples of previously published songs into their original works, which sparked the debate. Without the permission of the original copyright owner, some recording artists, including De la Soul, the Beastie Boys, and Biz Markie, have sampled sections of other artists' recordings and altered the samples in some way, used the samples as sound bites, or simply "looped" the samples to add to their original work. 9 This verbatim copying practise directly violates copyright regulations. Due to the fact that some musicians don't get authorization to utilise this

Copyrightable Sample

The question of whether the content being sampled is itself copyrighted material frequently comes up in digital sampling infringement prosecutions. The topic of artists stealing one or two notes from a piece has generated a lot of debate. The work must "come from the fixation of a succession of musical, spoken, or other sounds" in order to be considered a copyrightable sound recording. By extension, a collection of sounds rather than a single note, chord, or sound effect might be protected by copyright. alone cannot be protected by copyright; rather, there must be a collection of sounds.

Many musicians make use of one-note samples. Orchestral "hits" and drum samples are typical examples of these monophonic sounds. Despite the misconception that copying even a single note or chord from a trademarked sound amounts to infringement, no infringement occurs in this instance under current copyright law. 11 However, in other circumstances where a distinguishable part of the music has been used, the same can constitute a copyright violation.

Doctrine of Fair use

The doctrine of fair use is a legal defence against copyright violations that permits limited uses of copyrighted works without the owner's consent. In order to safeguard the right to freedom of speech for works that are priceless and important to society, the fair use doctrine was created. A limited amount of use of copyrighted material is permitted without the author's consent under the fair use exemption to the author's rights. For instance, fair use does not authorise the reproduction of an entire work or a significant portion of one; rather, it permits the use of excerpts or quotations from a work as long as they do not appear to rip off the original author's concept.

both the right to perform the work and the right to exhibit it in public. A derivative work is an expressive creation that incorporates significant copyrightable components of an original, previously created first work, according to copyright law. If sampling is done without the appropriate licencing, it violates the artist's rights to derivative works.

The fair use concept is probably the most important restriction placed on a copyright owner's exclusive rights. Even if a copyright owner can demonstrate an infringement, a defendant is nonetheless protected by the fair use defence and is not held accountable.

Position in India

The Indian Copyright Act's Section 52 addresses the fair use principle. A fair dealing of such work within the meaning of this clause does not include the publication of a collection of public addresses or speeches. As a result, Indian law permits fair dealing as a defence for particular actions that would not be considered as infringement for the four types of copyrighted works stated (viz. literary, dramatic, musical and artistic works). Although the Indian Copyright Act, 1957 does not specifically address sampling of sound recordings, Section 14 gives the copyright owner certain exclusive rights to safeguard their entire work or a significant portion of it. By virtue of Section 14(a), the proprietor of a musical work has an exclusive right to make adaption of work

Case laws

In Har per & Row Publishers, Inc. v. Nation Enterprises the United States Supreme Court ruled that a commercial or for-profit objective "tends to weigh against a determination of fair use." The Court clarified that the key factor in the profit vs nonprofit difference is "whether the user stands to profit from exploitation of the copyrighted material," not whether the user's only motivation was financial gain.

The court's statement in Bridgeport Music v. Dimension Films that "Get a licence or do not sample- we do not perceive this as restricting creativity in any meaningful manner" sums up the position of the nation. This disproves the claims made by the artists about their independence and inventiveness.

The recent case Pelham GmbH v. Ralf Hütt, which raised the problem of sampling of a phonogram recording amounting to infringement before the Court of Justice of the European Union for a preliminary judgement, provides an easy way to understand the concept. An unlicensed sampling of a 1977 Kraftwerk-owned electronic band recording was made. alleged that Pelham GmbH included the sample in a continuous loop and with minimum editing after sampling a rhythmic pattern from the song "Metall für Metall" for about two seconds.

The use of a 7.5-second sample from "Higher and Higher," a track originally recorded by the Farm and owned by Produce Records, when included in the song "Macarena" by seasoned Latino duet Los Del Rio, constituted infringement because it was the substantial component of the song.

The use of 20 seconds of a 4-minute musical work was sufficient to form a substantial part in the UK case of Hawks & Son v. Paramount because the 20 seconds were recognised as an essential and basic component of the original song.

Super Cassette Industries Ltd. v. Gramophone Co. of India Ltd. For the right to use the original sound recording of Ganapati Aarti in audio cassettes, the plaintiff offered the defendant a licence fee. Even though the defendant refused to grant a licence, he nonetheless created the cassettes and was found guilty of copyright infringement.

Conclusion

In order to preserve artists' derivative rights in the present era of music sampling, Indian law still has to be improved. The demand for a jurisprudence is growing in India as genres like hip-hop and popular music flourish that heavily rely on sampling for their production. The question of potential misuse of the fair use exception in the music industry has not yet been addressed by the courts, thus they will have to embrace international law.

The study demonstrates that even while there is a fair use provision that could allow certain artists to abuse copyrights under the guise of fair use, the likelihood of such abuse is extremely low because of the safeguards and standard that the Court has imposed. From any type of unauthorised and illegal use of their copyrights, the law perfectly safeguards the interests of artists and copyright holders. This stops a significant portion of the music industry from losing money. The fair use exception, on the other hand, protects the freedom of speech in addition to the safeguards by allowing artists to freely utilise a reasonable amount of material for the designated essential reasons. The legislation eventually acknowledges