| Summary: | 碩士 === 東吳大學 === 法律學系 === 99 === It has long been to borrow other's work to compose music. Following the advances of technology, digital sampling becomes a possible way to compose music. With the awareness of copyright, however, tensions between authors and users have dramatically increased. The purposes of this study were to discuss copyright issues caused by digital sampling and to provide possible solutions in order to ease the tensions between copyright holders and digital sampling users.
We have not yet encountered a digital sampling case in Taiwan. In the United States, however, it has formed a number of cases since 1991. We have found the dilemma faced by the digital sampling users from these cases. In this study, I selected the most important cases, critically analyzed them, and summarized the transformation of standards employed by the United States Court to determine whether digital sampling constitutes infringement. To establish the infringement, it must be that the sampled fragments are protected by the law of copyright. Under the limited notes and chords for the composer to compose their work, it is imperative to review whether the sampled fragments have the originality.
Although the law allows to fair use, it is difficult to apply it in digital sampling because the four facts have their uncertainty. Digital sampling differs from sound recording. Digital sampling usually changes the original work. It destroys the identity of the original work, therefore, it should be carefully considered compulsory licensing in digital sampling. In addition, recording the original song to different versions can be classified as a whole song’s use, but the digital sampling can be classified as a part of use. How to calculate their license fees? Adopting a single price? Calculating by the number of seconds used? Or calculating by the number of seconds used plus the basic price? Since it involves multi-stakeholders, negotiate authorization may be a better approach to solve this problem because it more respect original authors or the market mechanisms.
Producing a music work involves various creators, including lyricists, composers, melody composers, performances, as well as publishers. Once these creators’ works combined into one completed music work, the individual creator has two types of copyrights; one belongs to his original work’s copyright, the other belongs to the co-authored copyright of the new work. Unless the music publishing company (or the recording company) has bought each individual creator’s copyright or was authorized to produce it, you will encounter using difficulties in the real world because you must get copyright from each author before you are able to use them. Sharing creation can provide a model for solving the licensing problem. Moreover, it is necessary to set the payment of the sampling platform.
Copyright not only brought huge economic benefits, but impacted on cultural innovation. Facing the advances and innovation of the Hi-technology, it is necessary to create a more flexible work-sharing environment. So, how to find a dynamic balance between the “profits” and “use” becomes the challenges encountered by the copyright nowadays and in the future. Different work categories demand different methods of distribution, in particular the music work and sound recording. Sharing work with others can contribute more to the cultural and creative industries if less restrictions.
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