Song Samplers Beware: Your future is far from certain.

Song Samplers Beware: Your future is far from certain.


Amanda Cohen is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course

Song Samplers Beware: Your future is uncertain.

Friday, March 13th marks the Canadian release date of RIP: A Remix Manifesto, Montreal filmmaker Brett Gaylor’s look into mash-up culture and sampling.  This film and its predecessor, Good Copy Bad Copy, bring the fair dealing/fair use exception as it relates to music sampling to the forefront of copyright discussion.  The media attention surrounding the release of the documentary reintroduces the question of how the decision in CCH Canadian Ltd. v. Law Society of Upper Canada [CCH] will be utilized by a Canadian court in a music sampling dispute.  

Unlike the US approach, the Canadian “fair dealing” exception in s. 29 of the Canadian Copyright Act [CCA] does not, as of now, recognize sampling as fair dealing.  However, the decision in CCH opened up the possibility as the purpose of the dealing is now only one of many factors to be considered, rather than the prior requirement that a use be in accordance with one of the enumerated grounds in s. 29 of the CCA.

Given the realities of the music industry, a music sampling case may require a different analysis than that undertaken in CCH:

1)   It is the record label that holds the rights to the recording that would be sampled; and

2)   The test arising out of the CCH decision to determine whether a dealing is fair ignores the likelihood of a musical sample having a positive effect on the market for the original work.

Record Label as Rights Holder

The Supreme Court of Canada [SCC] begins its judgment in CCH by reaffirming its interpretation of Parliament’s policy objectives in the case of Théberge v. Galerie d’Art du Petit Champlain Inc:

“The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator… The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature.” 

The reality of the music industry is that creators are not the rights holders.  Before and during the recording stage, the author owns a copyright.  However, a master recording is facilitated by a record label.  The record label, under a contractual arrangement with the creator, obtains a copyright in the master sound recording.  Subsequent to this, the rights can be bought and sold to other individuals/companies.  Will this distinction weigh in favour of a sample being more easily justified as fair dealing, as the disincentive to create an original work is lessened when the creator is not the rights holder losing out on payments? 

The court’s likely response, from a utilitarian standpoint, is to weigh this fact more heavily against finding fair dealing in a music sampling case.  This is assuming that the court would use the words “creator” and “rights holder” interchangeably.  There is more damage done when it is the record label losing out on payment for the use of a work.  The aggregate effects on a record label’s profitability and incentive to enter into contracts with any artist far outweigh the disincentive to create by a single artist.

The Remix Effect

One of the factors in CCH looks at the market impact of the use on the original work, focusing on negative effects.  This is considered to be one of the less important factors.  However, it completely ignores the possibility of a use of a song actually increasing the sales of the original.  Creative Commons recognizes this trend.  Through ccMixter, people can remix music under non-commercial Creative Commons licenses.

Artists are known to remix their own songs in hopes of renewing interest in the original versions.  Perhaps the renewed interest in the original song could lead to more revenue generation than the fees collected on a license.  The likelihood of such an event would imply that a court should weigh market impact more heavily in the case of music sampling.

Where the only frame of reference to discuss the topic of music sampling as fair dealing is a case that is arguably too flexible and based on the archaic view that the creator is the rights holder,  there is no way to know whether sampling can be justified under fair dealing.  Lets just hope that the first case is not a use that defaces the judge’s favourite song.