Kristof Ovreeide

AEPS904
A history of sampling audio & the
increase of copyright infringement
1. What Is Sampling?
Before we can understand how the law of copyright can affect sall'\olirw we must first know
what sampling is. A dictionary definition states that 'A sample is a small separated part of
something illustrating the qualities of the mass' . In this document the term 'sample' can refer
either to an individual recording of the instantaneous amplitude of a sound or a whole series
of individual recordings which together form a complete sound. So a sample could be a one
byte number in an 8-bit system (or one word in a 16-bit system); or a who le series of data that
together forms a longer sound. The term 'sampler' can also be used interchangeably to refer
either to the electronic musical instrument or the musician/technician using the instrument.
Sampling in the musical sense is the conversion of sound into a binary numeric representation
ofthe sound (digitisation). Sound is a series ofvibrations or changes in air pressure. When
these waves hit the diaphragm of a microphone they cause it to move back and forth in
sympathy. This intum generates a fluctuating electrical signal that rises and falls about a
centre line.
A conventional analogue tape recorder works by imprinting these fluctuating electrical signais
as continuously changing (analogue) magnetic variations onto the moving magnetic surface of
the tape. A Sampler or digital tape recorder however works differently; it does not record the
actual sounds but a series of discrete numbers which represents the amplitude of the signal at
a given instant in time. When these numbers are played back in order at the correct rate,
passed through an amplifier and speakers, the original sound is reproduced. So instead of
recording a continuous copy of the input audio signal, the sampler measures the amplitude of
the input audio signal thousands of times per second, and each value is stored as a number in
memory.
Audio in
Anti-
Aiiasing
Filter
Memory
Sample
And Hold
fs
0 a ta
Recovery
Filter
Fig .1. Block diagram of a digital audio system.
Audio Out
(The Sample and Hold, ADC and DAC are ali synchronised to fs- the sampling frequency. )
There are two main measures that determine the quality of a sample which are:
the sample rate and,
the resolution.
Sample rate determines the accuracy of the sample to the original sound in the 'x' axis (see
fig.2.) and is also directly related to frequency response. To produce an almost perfect
frequency response of 20 Hz - 20 kHz a Compact Dise works with a sample rate of 44, 100
samples per second or 44.1 kHz, now the industry standard. If the sample rate is varied the
pitch of the output wave is varied and so a sample taken at one frequency can be replayed at
many ethers and can be played musically.
The Resolution or quality of the system is determined by the number ofbits (amongst other
factors) as this determines the degree of accuracy on the 'y' axis i.e. for an 8-bit system there
are 256 (28) possible values Higher quality systems use 16-bit numbers and with advancing
technology the best systems utilise 24-bits or even more where the steps are so small the input
signal is changed so little human ears cannot hear it.
1
OB
0 .6
0.4
02


-02
2 3 4 5 6 7 11 12 13 14
-0.4
-0.6
-OB
-1 ........................................................................................ .......................................... .
SantleRaie
Fig. 2. Diagram showing an Input Sine Wave and the Stepped Result of Sampling.
2. A BriefHistory ofRecording.
Si nee the beginning of civilisation music was live and as time progressed increasing numbers
ofhouseholds owned musical instruments and more and more people played them. By the
19th Century more prosperous families would have a Piano as the musical focus for the
family entertainment, but as the number of people playing the piano satisfactorily was small,
severa] solutions have developed.
One of the first forms of 'recorded' music is the piano roll which is a set of instructions for a
mechanical piano to follow, enabling it to reproduce an identical performance to the one
recorded each time it is played. The 'roll' could be made by either enlisting a professional to
play the piece into a special recording Piano in 'real time' ; or it could be stamped out by an
expert, enabling pieces to be heard, that would be impossible for a human to play, because of
their complexity. Piano rolls can be equated to a modern day M.I.D.I. sequencer connected to
a M.I.D.I. sound module. These piano roll instruments became quite advanced and the larger
ones could reproduce many instruments and complicated music.
The discovery of electricity in 1876 by Michael Faraday was to change the way most people
hear music. Although the history of electronics is relatively quite brief, there have been
incredible advances in the short period since its discovery. The fust cylinder recorders made
by Thomas Edison around 1877 were very crude and only a faint crackly recording was
audible. The potential for a 'Dictaphone' and other uses was seen and soon better machines
with increased clarity were made.
During the 1920's and 1930's, radio and 78 r.p.m. gramophones were developed, the new
music industry became organised and expanded. At this time artists or performers would sing
or play into a 'Hom' that would be acoustically coupled to a needle. The needle would vibrate
and etch the performance onto a Lacquer disk making a 'Recording' . Presses to mass produce
and make more durable, longer lasting disks were developed and so these performances could
be duplicated, distributed and sold.
By the late 1930's valves were weil developed, which made amplifiers available to both
professionals and consumers. This was a major tuming point which made electrical recording
and reproduction possible. On recording equipment the simple needles became electrically
driven styli, and the use of microphones instead of acoustic homs allowed severa} sound
sources to be mixed together. The quality and clarity of recorded sounds took a leap forwards
and 'recording engineers' matured to control ali the new equipment and develop new
techniques.
In 194 7 Phillips conceived Magnetic tape, which was to redu ce the need to record a
performance ali in one take. This meant that the recording on tape could be altered i.e.
effected or edited etc., before it is committed to vinyl disk. Sorne ten years later multi-track
recorders were launched which increased the flexibility ofrecording techniques, and in the
1960's and 1970's Rock and Roll stretched the Iimits of the new technology.
In the 1980's another major advancement was made with the introduction ofDigital Audio.
Initially the quality was poor with low sample rates and 8 bit resolution, but as the speed of
microcomputers increased so did the quality of the digitally recorded or reproduced music.
Now the standardisa sample rate of 44.1 kHz and 16 Bit resolution which allows very wide
dynamic range of90 dB+ and a frequency response of20Hz-20kHz. Other advantages include
almost noiseless reproduction and perfect copies/ clones.
Consumer formats for digital audio were developed and sales took off. The priees of digital
equipment also tumbled due to economies of scale, newer technology and improved
manufacturing techniques. Digital audio is an important development because the sound is
represented as O's and 1 's, which enables computers to be involved in sound reproduction,
widening the possibilities. Soon the micro processors available could manipulate sounds in
real time using complicated algorithms, enabling sounds/ music to be processed and effected.
Today even home computers are capable ofmaking, recording and processing music and a
growing percentage of the population now own their own computer and even more have
access to one. In the last couple ofyears the priee ofRAM- Random Access Memory- feil
dramatically. The priee of hard disks has fallen at the same ti me as the capacity has great) y
increased. Ali this has led to the wide spread availability of 'Tapeless' (Hard Disk) recording
systems which are now replacing analogue and even the first generation of digital multi-track
tape recorders in recording studios, and has brought professional sound quality within reach
of the home user.
3. Improvements In Technology.
In the 40's and 50's composers and musicians became very interested in the new electrical
technologies and continued the traditions of creating and adapting inventions to make new
types of music. Having obtained funding, laboratories and studios from the likes ofthe BBC
and Radio-Diffusion Franias the national broadcasters ofFrance, and CBS in America, they
produced soundtracks and sound effects. Tape loops were made laboriously using razor blades
to splice tape. They were then used to make the first samplers where actual recorded sounds
could be synchronised into live performances. Many techniques that are now found as
functions on modern day samplers were developed at this time for tape, such as cross-fades,
layering of sounds, multi-tracking, splicing, looping, playing sounds backwards aswell as
forward and playing them at different speeds. These composers also experimented with
oscillators to produce tones, made the first synthesisers and the first purely electronically
generated music. In 1955 Harry Olsen and Herbert Blair constructed the RCA synthesiser and
in 1959 a MKll mode! was made. These musicians/technicians formed a close-knit group
whose music became known as 'Music Concrte' .
During the 60's Robert Moog worked on Voltage Control systems for synthesisers and Donald
J:f"ucnat createa 'etcttom sequencers. A's ever tecnnOtgy was ceasetssty avetpea 'ana 'dy
1970 sophisticated synthesisers (but still mono-phonie), with a reasonable priee tag were
available such as the Minimoog and the ARP 2600.
In the late seventies digital synthesisers such as the Synclavier appeared and computers were
also incorporated into Sequential Circuits and Roland products to recall patch information. Ali
these technological advancements meant that ali the necessary ingredients for the construction
of samplers now existed, including the desire from musicians. The first people to be able to
digitally 'sample' as we do today were big time producers and artists who in 1979 could afford
a 'Fairlight CMI (Computer Musical Instrument)' with a priee tag of approximately f20,000.
Even aFairlight could only sample small snippets ofsound (about 1 second at 15kHz
bandwidth), such as drum sounds. As money was not a problem with these musicians, they
could also afford to pay any damages incurred by breach of copyright.
Concurrent with the technological ad van ces in the mid seventies a new form of music
appeared from the ghetto's ofthe South Bronx, New York, which would evolve to utilise and
promote the sampler more than any other music form. The music is Hip Hop and amongst the
originators were DJs like 'Kool Herc' , 'Afrika Bambaataa', 'Theodore' and 'Flash' who created
the new sounds by blending rhythms from Africa and Jamaica, with the Soul and Funk found
both in the underground and pop charts. M. C. s th en chatted over the instrumentais to hype up
the crowd in a party and this vocal style developed to become Rap. The DJ s used two turn
tables and a mixer to spin out a complex collage of old music and sound tracks. Breakbeats
developed where two copies of a record with a 'Break' are lined up on the turntable, and the
DJ seamlessly extends the 'Break' by playing first one copy then the other. Originally the
breaks were the instrumental drum breaks but over time the length of a break has diminished,
they have become more abstract and the art of selecting a break has developed so that one
must now use a great deal of ski li and knowledge to find new, unused, interesting and
musically worthwhile 'Breaks' . The turntable is also used by Hip Hop DJs to insert small
audio snippets, this use as a musical instrument can show us the closest origins oftoday's use
of samples. In this sense a turntable can be thought of as a poor mans sampler. In Hip Hop ail
musical rules and conventions have been discarded which has prepared the ground for a great
deal of invention and ingenuity, and is where a large proportion of fashions, musical styles or
new trends have found their origin.
In 1980 Casio moved into electronic keyboard instruments, and with their mass production
techniques again forced priees down. In 1981 Dave Smith of Sequential Circuits proposed the
USC (Universal Synthesiser Interface) which became MIDI (Musical Instrument Digital
Interface), and by 1983 the first instruments were produced to utilise it. MIDI enables many
instruments to be linked together so that one may be controlled by another and enables
performances to be recorded and played back or modified at a later time.
During the 80's the low cost samplers, were developed by firms like Emu-Systems, Ensoniq,
Roland, Casio and Akai whose products later became the industry standard. Over the last ten
years the capabilities and functions of the instruments has vastly increased and the clarity of
audio reproduction has improved with the resolution increasing from 8 bit to 16 bit quality
and the sample rates have increasing to 44.1 kHz or more.
The equipment has become much easier to use upto the point that a musical novice is now
able with a little creativity, to create very complex and professional sounding music. Over the
last few years after audio quality reached an acceptable standard, a great deal of design effort
has been put into improving the user interfaces of the se instruments to improve their ease of
use further still, i.e. the displays have been made larger and although individual buttons for
each function would be too expensive, icons and menus can make navigation through the
system simpler. This newly found ease of use through better interfaces and vastly reduced
priees has led to an explosion in the numbers of people sampling, which leads us to the
increase in the arguably illegal use of samples commercially.
With ali this technology surrounding a musician it is possible to produce, very quickly and
with very little effort, endless streams of mechanical sounding repetitive dross. This music is
rightly condemned but I think that many critics group ali sampled music into this category
which is wrong as good and bad can be found in every sphere oflife.
4. A BriefHistory of Copyright
The idea of copyright can be traced back as far as Greek times when a singer would be paid
for a performance. This was because although the performer had not worked to make a
product, but had worked and given a tangible commodity to the audience. It could be argued
that this idea of 'work' is also the main reason wh y a persons compositions should be
protected, because although a composer may not perform their work, they have still spent
time and effort 'making' a composition for people to enjoy.
The first copyright laws mainly involved controlling and restricting printing presses. The
control however was not in the hands of the au thors but was instead in the hands of the
establishment- the govemment and monarch of the day. The govemment wanted these
controls because they were afraid that their enemies might circulate literature and information
that could cause the masses to overthrow them. Over time however, the law has changed and
the control and protection now lies in the hands of the composers and writers of original
works. The French copyright law enacted after the revolution in the seventeenth century
because of the explosion in intellectual thoughts and publications that this brought about was
the first law to resemble the copyright laws known today.
Due to the advent of new technology around the tum of the century musicians and publishers
called for a revision ofthe law, the result being the Copyright Act 1911, from which today' s
laws are derived. Because of the speed technology developed oftwo further laws updating the
previous ones were passed. Other international copyright laws have been passed so asto
afford protection to copyright owners throughout the world.
5. Copyright
Copyright can be owned like physical property and is the right of the creator to prevent
another person using or copying his/ her music. Copyright protects the form in which the
artist/ author has set out his/ her work, not the underlying idea. This means that plots, artistic
ideas and themes cannot be protected. Names can be protected as trademarks or patents and
the separate law on confidential information is used to protect an idea. Items not available for
copyright protection include:
Ideas,
Facts,
Titles,
Nam es,
Short Phrases,
Blank Forms.
Copyright in a work allows the owner to control severa! uses of the work which are:
Copying the work,
Issuing copies of the work to the public,
Performing, showing or playing the work to the public,
Broadcasting the work or including the work in a cable programme service, and
Making any adaptation of the work, or doing, in relation to an adaptation of the work any of
the things listed above.
For a work to be eligible for protection it must be original ; this means that any work that is a
copy of itself cannot be protected. For a work to be classed as original it need not show
innovation or cultural merit, but must have been a product of skill and labour.
There are many copyright agencies that operate either throughout the world or in regional
areas whose purpose is to look after the interests oftheir members.
A work is usually owned by the author/ creator except for a work produced by an employee in
the course oftheir employment, when the copyright will belong to the employer, unless any
prior agreements have been arranged. There can be joint ownership if two or more people
create a work, but where the two peoples roles/ work is distinct, i.e. a lyrics writer and a
music writer, then two separate copyrights will exist .
Copyright can be assigned or sold to another person or parts can be licensed. The rights can
also be bequeathed upon the death of the owner. Au thors can also assign or li cense future
copyrights in works not yet created.
A copyright will usually expire 70 years after the death of the creator- ifthere were joint
creators it would be 70 years after the dea th of the last one to die. If the au thor is not known
the copyright will expire 70 years after the work was first made available to the public, either
by being performed, broadcast, exhibited, etc. The rules are the same for sound recordings
and cable or terrestrial broadcasts, etc., i.e. the copyright expires 70 years after the year of
manufacture unless they are re-released in that period when the copyright exists from the
release date. Previously the period of protection was 50 years, and the changes only apply to
works created after 1 st January 1996. Once the period of copyright has elapsed the work
becomes public domain which means that anybody canuse the work, (which includes
sampling). Other works in the public domain are those where the copyright has become lost or
if the owner of the copyright specifically donates the work to the public domain.
Copyright essentially prohibits ali unauthorised exploitation ofthe work. The copyright owner
can either choose to exploit the work themselves or they may sell, licence, assign or bequeath
the copyright either as a whole or in part in a similar fashion as one would with property, so
that somebody else may exploit the work.
If a person commits an infringement on a restricted act i.e. by copying a piece, without
obtaining the required permission or licence they may be liable for damages, injunctions on
their actions or business operations and even the seizure of their product. A person infringing
copyright can be held li able even if they did not know what they were doing.
Samplers must be aware of the two aspects ofMoral rights which enable the owner of the
copyright to prohibit any use of the material if they fe el that su ch use is derogatory or will
bring the author into disrepute (Integrity Right). Permission to use specifie samples has been
refused in sorne recent attempts by 'Gangsta Rap'/ 'Reality Rap' artists such as the 'Geto Boys',
to procure licences, the reason stated being that the original composer did not want to be
associated in any way with music of such a crude, violent and sexist nature. In another case
Coolio had to 'tame' the lyrics in his single 'Gangsters Paradise' in order to obtain permission
for release. The song sampled Stevie wonder and although he liked the music after he heard
the lyrics he stipulated that for his consent to use the sample the lyrics should be cleaned up.
The arguments about why Gangsta Rap evolved and whether its contents should be censored
form the basis of a separate discussion, but the way the music is created i.e. using samples
rerums narura!'t'y ro rne ques"on ofsamp1'ers vs. copyrighi owrrers, arro'rin's issue is si'ow1y
infecting not just Hip Hop (ofwhich 'Gangsta Rap' is a facet), but all forms of modern music,
especially the once burgeoning 'Dance' music scene, where using small hardly recognisable
snippets of music to form original pieces is fast becoming the norm.
The moral right under the Berne Convention also confers the right to be acknowledged as the
au thor of a piece onto the composer (Paternity), which (if the composer wants) can result in
the inclusion of a message stating this mu ch on any product containing their work. Ofcourse
one must determine wh ether the use of the piece is covered by copyright and in the case of
samples this may be difficult due to the different perspectives of the copyright owner and the
alleged infringer.
Should the users of samplers be given their own 'Moral Right', in that if a sound exists
anybody should be allowed to make use of it for their own creative purposes? I see this as yet
unheard of new right as a form of musical 'freedom of speech' .
Fair dealing (or Fair Use in the USA) is probably the most widely used and important deferree
in relation to using copyrights. lt allows for the exploitation of a copyright in certain
circumstances without the need for licences or the need to pay royalties. The limits to fair
dealing state that only works copied for the following purposes are permitted, but with certain
provtsos:
Research or Private Study, provided that only one copy is reproduced but no
acknowledgements are required.
Criticism or Review, multiple copies are permitted but sufficient acknowledgement is
necessary. Or,
Reporting Current Events, multiple copies are permitted, and sufficient acknowledgement is
needed, except in the case of reporting done via a sound recording, film, broadcast or cable
programme.
In ali cases the copying must be 'Fair', and to assess fairness the amount or proportion of the
work copied will be important as will be whether the usage competes with the copyright
owner.
Copyrighted works may be included in another incidentally by way of background. Strangely
there is no infringement committed in architecture if a building is copied and reconstructed.
The law in America is a little more permissive as it allows the above exemptions but the
primary factors to be considered are:
The purpose and character of use, including wh ether su ch use is of a commercial nature or is
for non-profit educational purposes. Although this is not the deciding factor preference is
given to pieces created for non-profit educational purposes. This also includes whether the
work is used for Criticism, Comment, News Reporting, Teaching, Scholarship, or Research.
This list is not restrictive although proving 'Fair Use will be easier if the new work is created
for one ofthese purposes. This section also looks at the degree oftransformation and if the
new work merely supplants the original or if it adds something new which could in elude a
different character or further purpose i.e. altering the first with a new meaning, message, or
expressiOn.
The nature of the copyrighted work in that sorne works are simply more deserving of
protection than others.
The relative amount and substantiality of the portion used in relation to the copyrighted work
as a who le. This is not a fixed ratio but looks at whether the portion used (in both quality and
value), are reasonable in relation to the purpose of copying.
if the effect of the use upon the potential market for, or value of, the copyrighted work will be
harmful. This also looks at the possible harm done to derivative works as weil.
The fact that a work is unpublished does not itself bar a finding of fair use if such fin ding is
made upon consideration of ali the above factors.
6. Organisations protecting Copyright
MCPS
PRS
NMPA
AS CAP
BMI
HFA
SABAM
The issues of creative ownership and copyright have been discussed earlier. In comparison to
the .f2.50 royalties generated by shellac disks in 1910, in the modern music industry huge
sums of money are generated by the dissemination of individual composers and artists
original works to the public by commercial enterprises such as radio and television stations,
public performance venues, retail outlets, film comparues and advertising agencies. lt has
therefore always been necessary to have a system to ensure that individual copyright owners
receive a fair share of the commercial profit generated by their work. Therefore M.C.P.S.,
P.R.S. and P.P.L. etc. Were created to fulfil this function.
As the possibility of mechanical reproduction of music became available the issue of
copyright no longer applied only to the 'live' performances but also to mechanical
reproduction by means of music boxes, piano rolls, cylinder and dise recordings. This meant
that the question of royalties applied not only to the actual performance but also to the
recording itself. In anticipation of the Copyright Act 1911 the Mechanical Copyright
Licensing Company Ltd. (MECOLICO) was established in 1910. Its purpose was to collect
and distribute 'Mechanical' royalties due from the new gramophone companies, i.e. it collects
royalties from the record companies on behalf of the artists and composers for the
('mechanical') duplication and distribution oftheir performances and compositions which are
covered by copyright.
Shortly after MECOLICO was instituted the Copyright Protection Society Ltd. was founded
and in 1924 the two organisations merged and formed the Mechanical Copyright Protection
Society Limited (M.C.P.S.). The society grew and expanded rapidly with advances in
technology, firstly with sound, film, radio and television recordings and more recently
magnetic tapes, video cassettes and newer digital media such as Compact Dise, Mini Dise and
Digital Compact Cassette and even the internet, Video On Demand and Digital Versatile Dise.
In 1976 the Music Publishers Association (M.P.A.) bought M.C.P.S. and now grants licences
in all areas regarding recording rights world-wide through agreement with similar
organisations in other countries. In 1988 M.C.P.S. merged with the Mechanical Rights
Society, whose work had previously been administered by M.C.P.S. anyway. Anybody who
has a copyright (in musical composition, lyrics or publishing) to their name does not have to
pay or subscribe to become a member, but in order for the MCPS to collect royalties on their
behalfthe members must first sign an exclusive legally binding agreement that gives MCPS
the right to issue licences relating to two restricted acts, namely: copying the work and issuing
copies ofthe work (distribution). In addition, copyright owners may have the right to control
the importation of any copies of their musical works.
M.C.P.S. collects royalties for its composer and publisher members whenever a recording of
their music is produced for sale here or abroad, although members may opt to collect their
royalties directly.
Blanket licences are issued to broadcasters allowing them to use any work including specially
composed 'Library' or background music. Producers of videos, (such as: films, music videos
and television programmes) are becoming increasingly important sources ofincome.
To check that nobody is trying to reproduce sound recordings without permission and paying
the correct royalties, M.C.P.S.' audit services department monitors record manufacture and
sales, and has the authority to look at record company and pressing plant accounts.
Like M.C.P.S. the Performing Right Society is a non-profit making organisation. It was set up
in 1914 by composers, authors and publishers to collect royalties for public performance and
broadcasting of the ir works and also to restrict unauthorised use of the ir works. As many
works are performed all over the world thousands of times per day, it is unrealistic that
copyright owners could collect ali the royalties owed to them and to give permission to ali the
performers who wished to perform their works, so the P.R.S. was formed to administer these
rights on behalfofthe copyright owners (composers and music publishers).
This is done by issuing licences for public performance of the P.R.S. member's work
worldwide through affiliation with similar societies abroad. In Commonwealth countries
P.R.S.' subsidiary Music Copyright (Overseas) Services Ltd administers the licences. This
means that there are about half a million members. The licences cover ali musical works
whether they be live or mechanically reproduced (except for operas, musical plays,
pantomimes or ballets).
After administration costs and donations to the members' fund (for members who fallon hard
times and really need financial help ), have been deducted, ali the royalties collected are
distributed amongst the members (or affiliated members). The fees are generally spread out
twice a year and are split up into performing and broadcasting fees.
The society is run by a council of24 members who are elected by the other members. To
become a member an admission fee must be paid, but a:fier that there are no further fees or
charges. There are membership criteria but composers and writers of lyrics will most likely be
allowed membership.
Record companies spend extraordinary amounts of money on bands each year, so they want to
recoup sorne of this and it is done through royalties recouped from the artists which are
collected by MCPS and PRS etc. and their own royalties collected by PPL (Phonographic
Performance Limited). This organisation is only responsible for licences in regard to the
copyright in the sound recording, which is to say the playing of the recording rather than its
manufacture. This copyright is usually owned by the record companies who release the
recordings. PPL is a non-profit making organisation established in 1934 by the recording
industry to administer public performance and broadcasting rights centrally to ali kinds of
venues, DJ's, Jukebox operators and telephone disclines, i.e. anybody who plays sound
recordings. Radio and television broadcasters pay for a blanket licence.
Those who make the most money from sound recordings paya higher tariffthan those who
don't, so radio stations and discotheques pay more than shops or theatres. 67% of the royalties
collected are paid to the record company members, the remainder going to the recording
artists via the Musicians Union. The royalties are distributed annually, each members income
is calculated from returns from broadcasters and a sample of public performance venues.
Obviously it would be impossible to know how to distribute these royalties properly without
monitoring production or performance. MCPS decides how to distribute royalties in
proportion to the number ofunits manufactured. The artist with the most will receive the
largest amount of royalties and the person with the fewest will get the !east amount of money.
PRS checks the output from radio/ television and theatres, etc .. lt cannot monitor the en tire
output but the make the broadcasters tape it (so that it can be checked if necessary) and fill in
forms which will hopefully account for every second. PRS can then cali on anybody at
anytime to see what they are or have been playing. However the overall amount of checks
made and method used by MCPS and PRS is confidential.
As the American market is so large and influential it is wise to explore the background, legal
situation, and organisations there. It is also likely that anyone who is very successful will have
hits in America and so must be aware of the regulations and penalties.
In 1917 the Music Publishers' Protective Association was founded with the intention of
interpreting copyright law. In 1966 the name of the Music Publishers' Protective Association
was changed to the National Music Publishers Association.
The American Society of Composers, Authors and Publishers
The American Society ofComposers, Authors and Publishers was founded in New York in
1914 to fulfil the same roll as P.R.S. (with which it is fully associated), in the USA
AS. C.A.P. is owned by writers and publishers and has about 50,000+ members who are
composers and authors of music but may also be licence users too. Licences are issued to
sorne 9000 local commercial radio stations, 800 commercial television stations, the three
national television networks (N.B.C., C.B. S., and A.B.C.), and cable television stations like
M. T.V. and H.B.O .. Other smaller licensees are discos, bars, airlines, hotels, or any other of
the thousands ofusers of music. As can be seen the amounts ofmoney raised from these
licences will be huge and is divided between the members on the basis of a scientific random
survey designed, reviewed and conducted by independent outside experts. The fees collected
are distributed six times per year, quarterly for moneys earned in the US, and twice annually
for any works earning money abroad.
B.MI.
B.M.I. issues licences to music users in a similar fashion to AS. C.A.P. , but includes college
radio stations in its sample which is a vital arena for new acts and musical trends. The
royalties are however distributed according to broadcast performances logged, and any non-
broadcast revenue is simply used to augment dividends to members whose work was
performed on radio or television.
The Harry Fox Agency
The Harry Fox Agency, Inc. was established in 1927 as a wholly owned subsidiary by the
National Music Publishers' Association, and acts to administer 'mechanical' licences for the
reproduction of copyrighted musical compositions onto commercial records, tapes, CDs,
computer chips and all other audio-visual media to be distributed to the public for private use.
They also licence music for use in television and video works, this is called 'Synchronisation'
and includes music included in TV and Radio commercials. The company has similar
functions to M.C.P.S. and has the power to audit individual record companies accounts.
The royalties are distributed to its members within 10 da ys of receiving the payment from
music users (who inturn are required to pay within 45 days of the close of each quarter), and
is one of the most efficient music rights agencies or society in the world. Obtaining a licence
is completely computerised and operates 24 hours each day.
As the USA is so large there are also other copyright agencies that compete with the ones
above such as the Copyright Clearance Centre, but these are the largest, most important
agen ci es.
SABAM
The Belgian society of authors, composers and publishers, also working close with other
international organisations wich interests are protecting the rights of authors, composers and
publishers.
7. Ethics Of Sampling
Clearly sampling has created severa! problems in the field of copyright law. These and sorne
of the possible solutions are discussed below. The main problem with sampling is that a
musician is using not even an exact copy, but the original work of somebody and passing it
off as one's own. A press release from the Music Publishers Association Ltd. made the point :
'How would y ou like it if y our property was stol en, eut up in pieces and put back together in a
different shape and sold to someone else?' . It also raises the question ofwhether the person
who played the original sample that was looped back to make a new song owns the whole
track or whether the person who took the sample and arranged it owns the track. One could
even say that the sample is being stolen from the record company who paid for the studio
time. 1 think that this is wrong for shorter snippets because one would only be taking an
abstract sound or couple of notes not a whole melody or phrase, and even George Clinton said
'De La Soul pay real weil' , when they used one of his samples.
No art form occurs in isolation. 1 feel that ali music cornes from other peoples' ideas,- and this
applies to most art, i.e. an artist draws inspiration from past masters and their contemporary
peers, writers can develop other peoples' characters, and musical composers look back
retrospectively and also feed off each other to move forwards. As one person creates a new
style, others adopt it and add something oftheir own to progress. Sampling is not so different
in that it also adapts what has gone before. As Jane Howard pointed out, 'There is no such
thing as total originality' .
lt is accepted that artists can perform somebody else's song so long as they pay for the use of
the composers lyrics and music, they however will only receive the royalties due to the
performance. When somebody uses a substantial sample (more than a percussive sound or
individual note, i.e. a whole recognisable melody) it seems only reasonable that the artist who
took the sample should pay something to the original composers, artists and publisher of the
material from which the sample was taken for the use ofthe sample. However the cost of a
sample depends entirely on the disgression of the copyright owner, and as a matter of
principal EMI Music Publishers will not allow any work to be used for free. 1 feel that sorne
of the charges, which are still escalating, are too high already, e.g. $2000 advance on masters
(Maria Forte). 1 believe that the second composer should probably only paya small
percentage of the profit- 5-l 0% maximum for ali the samples used in one song. This is
because if a sample is used creatively the artist has selected and chosen a specifie sample out
of a tune- looped it- perhaps altered it and sequenced it, probably rnixing it with other samples
and instrumentation using their own skill and judgement and although the sample may be
recognisable it bears little resemblance to the original tune. This means that the musician who
took the sample has worked hard, has added something new and has produced a distinctive
individual creation. This evidence of discemment and skill indicates that sampling deserves
more artistic respect within musical circles. Artists who incorporate samples into their work,
( especially Hip Hop producers) take tunes that are often past their time, unheard of and rare! y
purchased and then make them into something popular. This in tum makes the public aware
of the original piece, and if it is available or re-released it can have a second wind and
possibly even become a hit another ti me around. This rejuvenation of records could probably
earn the original artists a lot of money, and if it wasn't for their greed this unexpected income
ought to be enough to prevent the need to pay for clearing samples.
As the record industry is a hard business it cannot be expected that anybody will allow the use
oftheir work for nothing when they think that they may be able to get something in return,
often only a few musicians will make it big, and most will be looking for a quick buck as they
struggle through life.
f"'mins; ee1: wrlere-Iriere-IS- a-pro1m -orJ.iuerprei.Iton orl:rie-.Law. J'ne-copyrrgrli' owners-
will say that the new work (containing samples) is merely an adaptation of the original (even
if it hardly resembles the original), and therefore they require payment, and the samplers will
say that the new work is due its own copyright as work, skill and effort have been put in to
create an original piece and as far as they are concerned no slavish copy has been made sono
payment to obtain a licence is needed.
I wouldn't be averse to crediting artists for samples used on the sleeves of records to help
facilitate extra sales of the originals, although this would detract from the secretivity ofthe
sources of samples and would reduce the mysteriousness of how to obtain these records,
which is one ofthe things that keeps this genre (Hip Hop) alive- the never ending quest for
unknown breaks and beats!
However credits on the sleeves would also mean that more people would use these samples
and sample in general because they would know where to get hold of the records. This would
be a backwards step for those people who wish to eradicate ('free') sampling, and could also
possibly lead to a less creative and more repetitive use of samples.
8. Licensing
To use a particular piece of music it is necessary to get permission both from the company
who owns the copyright in the sound recording and from the owners of the original work/
composition. Ifthe work is to be copied which includes 'Sampling', M.C.P.S. should be
contacted for a licence, (or ifthe piece is only to be performed the P.R.S. is the responsible
body). Music publishers own the majority of copyrights in songs and as there are thousands of
these it makes sense that rights owners belong to organisations such as M.C.P.S. or P.R.S. so
that a lot oftime can be saved whilst obtaining licences. These organisations also have
massive computer databases with ali the details of songwriters, songs, singers, publishers and
record comparues etc. so that they can give most information very quickly. The main reasons
to get permission to use a piece ofwork is that the copyright owners might object to how their
work is used, and the fact that both they and the record companies want to get paid.
9. Copyright Infringement (Examples)
Any sample is a copy so permission must be sought in order to use it- sorne people might say
that 'if you can recognise a separate work within another then an infringement has been
committed' or 'its not quantity but quality' . Ben Liebrand said 'If a drum loop is used in a
record and is covered with other instruments it is quite easy to get away with it' he added
'Samples should be short, they should be sound effects or non-melodie' . The fact that any
sample must be paid for is thought to be so crucial that at Polygram there is a whole
department whose job is to listen to records to check for unlicensed James Brown samples.
James Brown who was himself sceptical about sampling and has become one of the most
sampled artists, has now started sampling artists who have sampled his work previously and
altered it in sorne strange way that amazes hi m. Be cause of the economie realities of going to
court the case law in this area is quite sparse. The expense also means that copyright
infringement does not usually become an issue until someone has made serious money from
someone else's creation.
Ifyou follow the rules things can be good for people using samplers e.g. P.M. Dawn obtained
permission from Spandau Ballet to use samples from 'True', which helped them make their
song 'Set Adrift On AMemoryBliss OfYou'. Spandau Ballet even helped promote it. The
music for the P .M. Dawn song was very similar to the original and instantly recognisable, as
the main samples were a couple of bars repeated and arranged into a new sequence, so if a
licence had not been obtained an infringement would certainly have been committed. The
details of the licence meant that P.M. Dawn had to split the royalties/ eamings with Spandau
Ballet 50%/50% . In the process the original 'True' was re-released and was a hit a second
time around. Everybody was happy but things aren't always this simple or easy.
For example De La Soul's first single 'Plug Tuning' sampled Liberac which did not cause
much of a problem, probably as it made very little money, but when they sampled Hall and
Oates on 'Say No Go' and the song became a hit they encountered a law suit, and worse, at the
end of 1989 the Turtles sued for $1 .1 million for the use of an unlicensed sample from their
1969 single 'Y ou Showed Me.'. However the case was settled out of court for a figure
'rumoured to be in the low five figures' .
More recently (1988), rapper Biz Markie and his record label Wamer Bros. Inc./ Cold Chillin'
were cited for violation of US copyright laws and he was condemned for his use of an eight
bar sample from Gilbert O'Sullivans 1972 song 'Alone Again (Naturally)' as weil as the titled
refrain, (published by Grand Royal Music).
The sample used is quite long in terms of samples and is what constitutes a 'Substantial'
portion of the original piece. Biz Markie's song amounts to a rearrangement and parody of the
original and as su ch one must expect to pa y for the use of the composition and the sound
recording sampled. The band daim that there was a mix up over sample clearance and that
they would not have released the single or put it on the LP '1 Need A Haircut', if they had
known that clearance had not been obtained. The judge ruled that the use was 'tantamount to
theft' and referred the case for the consideration of cri minai proceedings. This case is
important as it is one of the first rulings in this area and many people use this judgement as a
basis for their own. The record was barred from shops and has become a rare collectors item.
Biz Markie's subsequent album is called 'Ali Samples Cleared' .
Again in 1990 both MC Hammer and Vanilla lee released records. MC Hammer sampled'
Superfreak' after obtaining a licence and although he had to pay out a large but undisclosed
amount of expenses to the original artist, the record was a hit and he encountered no
problems. Vanilla lee however sampled the most identifiable riffs from David Bowie and
Queen's song 'Under Pressure' for his only hit from his LP entitled 'In The Extreme' . The
samples however were not licensed or even credited. As it is generally accepted that readily
identifiable riffs or hooks in a song are what generates the sales, the similarity ofVanilla's
track to the original would lead it to compete directly. The case never went to trial, although it
is believed that after a threatened law suit from 'Under Pressure's' copyright owners Vanilla
lee settled out of court for an undisclosed sum. When the single 'Under Pressure' was re-
released in 1992 by Queen, notes on the sleeve credited David Bowie and pointed out that the
piano and bass had featured on Vanilla Ice's single. It would seem that Queen do not want
other people to profit from their work, but do not mind using other peoples work to promote
their own. This just shows the low esteem the users of samplers are held in.
Other acts using samplers such as Rob Base and the Beastie Boys have been reprimanded, and
as far back as the earl y eighties Kraftwerk sued Afrika Bambataa for sampling a drum beat. In
November 1992 Redman was taken to court by Bridgeport Music for sampling from the
Clinton/ Parliament/ Funkadelic back catalogue without permission, but when they tried to
sue Eric Band Rakim for using one oftheir samples on 'Lyrics ofFury' the case was thrown
out of court because their ownership of the back catalogue was in doubt. Big artists such as
Marly Mari and L.L. Cool J. have been challenged for sampling 'Rappers Beware' an old
drum track and even Michael Jackson has been in trouble for sampling 67 seconds of the
Cleveland Orchestra's rendition ofBeethoven's Ninth Symphony. Penalties are often shawn to
be excessive as A Tribe Called Quest supposedly had to give over 100% oftheir copyright in
a deal negotiated with Lou Reed after the release of their single 'Can 1 Kick It?' wh en they
sampled the bass tine from his single' Walk On The Wild Side' .
Ail the previous cases have been American examples, but in the UK a band called 'Shut Up
and Dance' (comprised oftwo members- PJ and Smiley), and their small independent record
label of the same name were put out ofbusiness by excessive fines after having been found
guilty ofusing a sample from Mark Owens' 1974 hit single 'Walking in Memphis' in their
1994 single 'Raving, l'rn Raving' without first gaining clearance. PJ said that MCPS had been
watching the progress of the band and label, from being a large (but not very profitable)
underground force and seemed to wait until the band had a large hit to make their move. Just
two weeks prior to release MCPS demanded that ali offending copies be returned and
destroyed. However sorne copies reached the shops and surprisingly the single charted and
still holds the record for the most sales in the shortest period of release. Mark Owens' hit
single 'Walking In Memphis' was re-released but to PJ and Smileys delight, was a complete
flop and points to the possibility that A) records using samples often appeal to a completely
different audience to that of the original and that B) artists that use samples often add to or
change the original sufficiently to create unique music.
MCPS went through the entire back catalogue of the Shut Up and Dance label and combed it
for any uncleared samples that they could recognise, which unfortunately were liberally
scattered on almost every release. Sorne of the artists sampled included Suzanne Vega and
Prince, and Shut Up and Dance were made to pay for every one. As is often the situation in
these cases the final settlement was made out of court and the sum involved remains
undisclosed. PJ also said that when he first started sampling he tried to clear the samples but
nobody in the record companies really knew or understood what a sample was and so he was
shifted from department to department and eventually could not obtain permission. He still
maintains that relatively few people really understand the sampling process and that it is
difficult and takes a long time to make ones records legal.
After a period of rebuilding and consolidation Shut up and Dance have relaunched last year
and are finding that their fame and notoriety have helped them to obtain licences more
speedily this time around.
However the results of court litigation are not ali entirely going in favour of the owners of the
original copyright, and one ofthe most recently publicised cases was that ofthe Two Live
Crew, (who, with almost every release cause controversy and push the limits of acceptability.
Being American they have also strengthened the law covering freedom of speech).
In 1964, Roy Orbison and William Dees wrote the rock ballad 'Oh, Pretty Woman', which in
1989 The 2 Live Crew sampled as a basis to construct their own song. They took the
distinctive bass line from the original, but drastically altered the lyrics, added turntable
scratches, a different drum beat and solos in different keys. So although the music can be
recognised as the original, it has been changed into something different. The 2 Live Crew
song was released on the LP. 'As Clean As They Wanna Be' which was a collection oftheir
least offensive tracks.
Probably purely coincidentally, shortly after the 2 Live Crew release the motion picture
'Pretty Woman' came out. This increased the problems as the sound track featured the Roy
Orbison song but the film included the 2 Live Crew version. The film producers had to obtain
a licence for the Roy Orbison song, but as titles cannot be copyrighted no permission was
needed from anybody to use 'Pretty Woman' for the title of the film.
Acuff-Rose Music Inc. (the publishers owning the rights to the original'Pretty Woman' song),
took (Luther) Campbell to the Supreme court (USA) to sort out the ownership dispute. Luther
Campbell is the owner ofLuke Skywalker records, the label, upon which the tune in question
was released. He owns the copyright in the sound recording and is a member of the band. This
case is interesting as previously the fair use law had been interpreted to mean that any
commercial use was presumed to be an infringement i.e. illegal, but in this case the court
reinterpreted it after looking at a previous case that has been used in many fair use cases:
" ... in truth, in literature, in science and in art, there are, and can be, few, if any, things, which
in an abstract sense, are strictly new and original throughout. Every book in literature, science
and art, borrows, and must necessarily borrow, and use much which was well known and used
before."
The court also paid equal importance to each of the factors put forewords in the fair use test
suggested in the Copyright Act 1976 (USA) and looked at another previous case to see to
what extent an infringement (if any) had occurred. This case determined that it was necessary
to:
" ... look to the nature and objects of the selections made, the quantity and value of the
materials used, and the degree in which the use may prejudice the sale, or diminish the profits,
or supersede the objects, of the original work."
The court also investigated whether the 2 Live Crew's version would dilute the market for the
original. They were of the opinion that the buying audiences for each record were essentially
different and therefore sales of either would not affect the other. The court also decided that
although the copied material was used for commercial gain other factors overrode this and the
parody was a protected fair use.
1 see this as a key ruling because often music using samples, takes Jess of an original piece,
and sounds Jess like the original than the 2 Live Crew's version does. Songs containing
samples rarely borrow any of the lyrics (unless they sample a vocal phrase), let alone basing a
song around the original. Ail this means that if the ruling made in this case is followed by
more courts, less samplers should land up in trouble or have to pay for the use of the samples
taken.
1 am concentrating on audio sampling but as technology improves and the use of scanners and
software packages such as Photoshop become more widespread the issues raised by audio
sampling could increasingly apply to pictures and images. The poster for the film 'Pretty
Woman' could also cause sampling controversy as the woman next to Richard Gere has Julia
Roberts' face but uses an anonymous body double, so to obtain permission to duplicate the
poster one would have to get a release from Richard Gere, Julia Roberts and the body double.
10. Solutions (Sample Clearance)
There are a number of possible ways ofresolving the ownership problem. One possibility is
'Clear' any samples used. Clearance would probably not be worthwhile for a small production
run (perhaps upto 5 or 10,000 units), because the chances ofbeing caught are so slim. In
America sample clearance is now common practice and a publishing deal is usually done at
the same time, this would involve paying the artist a fee or even a percentage for their
permission to use the sample and depending on the agreement might include acknowledging
them on the sleeve. Record companies and rap artists/ producers have been using the rapidly
expanding sample clearance bouses such as 'Clearance 13'-8"', 'Diamond Time' and 'Sample
Doctor' to make a security blanket to avoid an expensive legal battle.
The clearance houses' main purpose is to catch any problems pre-production before they arise
post-production and are therefore less expensive to fix. Clearance payments can be upto
$2000 advances on masters (this is a completely unrealistic charge for small artists and record
labels, and would still be too high even if it cleared ail the samples used, because this figure
could be larger than the entire profit made by sorne smaller singles), but if one ignores the
sampling costs 100% of a songs copyright may have to be given up. Copyrights have become
commodities- both Ray Charles and George Clinton have been beneficiaries but they haven't
been paid for their songs only their copyrights. Wamer Brothers record company have made
sample clearance compulsory for ail their rap artists. Ex-Third Base member Pete Nice has
coped with these problems by recording live music over his breaks, he then only sampled the
live overdubs, which means that he must only pay once for the use of the composition but not
a second ti me for copying the sound recording ( although he will have to pa y and recognise the
session players this is likely to be a one off fee and therefore less expensive in the long run) .
The sampling phenomenon has proven to be an unforeseen source of revenue and as hu man
nature often leads to greed everybody wants to claim a publishing interest. One rapper who
used a Rolling Stones sample as the bass line for a track had to wait for nine months to obtain
clearance, even when Mick Jagger loved the new track and Sony New York moved rapidly.
Sample clearing is a long and tedious process and clearance houses have the contacts to get it
done quicker and sooner than anybody else, this is where they have carved a niche for
themselves in the marketplace.
If a record has been released containing an illegal sample and the copyright owners of the
original work find out, they canuse the services of the Music Publishers Association to avoid
a lengthy and expensive court case. This procedure has been set up on a trial basis to help
musical copyright owners involved in sampling disputes resolve their arguments provided
both parties go with an attitude of reconciliation. Submissions to the M.P.A. will be sent to a
specially convened (by the M.P.A. Secretary), panel ofthree experts, -one representative
from a major record company, a representative from an independent record company and a
representative from a composer organisation. The panel's function is not to determine whether
a musical work has been sampled or not, or whether such a sample constitutes an
infringement, or whether the sample infringes on the moral right of the original composer, the
best place for this is still the courts. The function of the panel is to fairly and independently
make recommendations upon the split of royalties earned from the exploitation ofthe new
worlc, although the findings are not binding.
For disputes to be considered by the panel recordings of the sample, original tune and final
tune are recorded onto cassette and along with a fee of f.l 00 exclu ding V AT, and a completed
short submission form are sent to the M.P.A. . The procedure is open to anybody to so long as
one ofthe parties is a member ofthe M.P.A. . For records containing more than one sample
the fee must be paid in respect of each sample.
Another solution is to sample from products assigned as 'MACOS' which stands for
'Musicians Against Copyrighting ofSamples' . This means that a musician can sample from a
MA COS musical work without fear of infringing on copyright or incurring any legal
ramifications. Unfortunately the catalogue ofMACOS products is still quite small.
MACOS is a non-profit organisation which is constructing an international network of
musicians whose opinions of sampling and the use of sampling technology oppose the
copyrighting of samples. Becoming a member ofMACOS does not affect copyrights in any
other way than to pro-actively grant permission to anyone, to freely sample from that material
for use in musical composition.
For one to assign their work as a MACOS product one simply informs MACOS, who will
supply special logos which are placed on the particular work. Specifie tracks on a record can
be assigned or not, but a clear note stating what the status of each track is required. lt is also
possible to reserve specifie rights such as that of paternity, by instructing the samplers to do
so on the sleeve.
It will still be illegal to sample any unauthorised samples on a MACOS product, and artists
should check with their record label and sound recording copyright holders before enabling
material as a MACOS product, so that the label doesn't sue anyone sampling their work.
11. Conclusions
There are severa! further questions to be asked such as, when somebody samples a record that
uses samples - who does one talk to about clearance- the original artist or the artist who
sampled the original? Also to whom should the royalties be paid, and would the fee be smaller
because the sample used was second generation? This scenario is already happening and will
increase the confusion in an already perplexing and bewildering topic. For example Mind
Bomb sampled the intro. from EPMD's 'Y ou're a costomer' on their 1995 album track 'The
Mind Bomb' . EPMD inturn had sampled Captain Skyy as the basis for their 1988 track, they
added drums from a Roland 808 to a one bar sample, but because of the environment at the
time the sample was not licensed or even credited. The Mind Bomb sample is not licensed and
will not be a problem due to the limited distribution, but if the record became a hit a whole
can of worms would be opened. Mind Bomb might have to pay Beach House Music (the
publishers ofEPMD), if they were unlucky in a court case, but EPMD might not sue for
royalties owed, as they obviously see nothing wrong with sampling. Would Captain Skyy's
publishers have a case against Mind Bomb? or could they only try to recoup royalties from
Beach House Music? Could they claim anything as the EPMD record was released before
anyone even realised they had to license longer samples?
Another example is the drum beat at the beginning of 'Substitution' by Herb Rooney,
published by Proboscis Music, which was first used by the Ultramagnetic MC's in 1987 on
'Ego Trippin" published by STM Music/ Ultra Magnetic on Let's Go Records. The
Ultramagnetic MC's credited nobody with supplying the original sound recording, but did not
get sued. Subsequently many artists have sampled the Ultramagnetic version ofthe beat.
Nobody, as yet has been taken to court for sampling just a drum beat, even one two bars long,
soit seems there is an unwritten rule stating that this use of percussion only, is permissible.
On the other hand sampling whole melodies or vocal samples is risky. In the first case, under
the current law Captain Skyy would have a viable case against EPMD and Mind Bomb.
EPMD could also chase Mind Bomb for royalties, however unlikely. I believe that once an
infringement has been allowed to pass any further sampling should also be permitted. It also
seems reasonable to me that somebody who has used samples should be prevented from
either, stopping their work from being sampled, or from claiming excessive royalties. Tuff
City Records have purchased the rights to 'Impeach The President' by 'The Honey Drippers',
because they knew many oftheir artists, and others as weil would sample this tune, thus
saving and earning them money at the same time.
lt looks like sorne musical pieces have fallen unexpectedly into the public domain early
simply because their use has become common practice. One of the most obvious examples is
'Funky Drummer' by James Brown which has been sampled on countless modern tracks.
Sorne artists have been sued and lost large amounts of money for using 'Funky Drummer',
others obtained li censes, but the vast majority of people using the break get away with it
completely as Polygram don't even notice the tracks.
The problem will not go away and as the priee ofhigh quality samplers falls their use will
increase. With the boo ming success of the internet many people are now breaking the law by
unwittingly including copyright sound material in their web pages and E-mail and then
broadcasting it to a potential audience of billions. With the invention of being able to transmit
audio data in real time using systems such as Cerberus, I-Wave and Real Audio direct to the
consumer mean that this abuse of copyright materials over the internet is also set to increase.
In November 1993 Frank Music took CompuServe (an on-line computer service) to court for
providing recordings of copyright music to its customers to freely download, and won.
However there is technology such as SCMS (Seriai Copyright Management System) which
prevents somebody making a further digital copy from the first source and the new standard,
the ISRC (International Standard Recording Code). Iffully adopted ISRC includes non-audio
data within sound recordings which will identify the source of each recording, enabling
infringers to be traced and may eventually include a copy protection mechanism.
Protection will become increasingly important as digital broadcasting becomes a reality with
the explosion in channels that this will bring along with direct digital distribution. The final
means of distribution is not yet certain so a flexible approach to new legislation is necessary
so asto afford protection now and so as to not stifle development of new technologies. 1t is
possible that a separate new right will need to be created to identify Interactive and Multi-
Channel Digital Diffusion (MCD) rights as present rights possibly will not be able to cope.
It seems tome (as with most things in life), that the power and ability to make the rules is in
the hands of the and rich, i.e. the big record companies and music publishers. Most of the law
in this area is edging towards the side of the owners of the original pieces and gives no ground
to the user of samples especially the small, in dependent musician. One of the most vital steps
needed to protect the users of samplers is an industry accepted standard mechanical rate for
the use of a sample. This would only work if the rate was set low enough so asto not take ali
the profits and took full account of the length, contextual use, amount of transformation,
substantiality of the sample and the amount to which the two records would encroach on each
others' market.
It seems paradoxical that in computer circles a copyrighted program in binary machine code
compiled for a particular platform may be backwards compiled to object code and recompiled
for another platform by a third party and the second code will qualify for its own independent
copyright. This can be paralleled to taking a sample and recompiling into another song, where
the new song is an infringement and does not receive its own copyright. The situation seems
even stranger due to the fact that a computer program can be used to do the compiling
automatically, meaning that not much work has been done by a human to earn the second
copyright but no change is made toits validity. Ifthese rules were applied similarly to
sampling almost ali sampling without licences could no longer be classed as theft .