Sampling may be defined as taking a segment of a copyright-protected sound or
a sound recording and employing it, in order to make a new composition.
Defining a theory of music, in other words what merits protection, is
germane to appreciating use of which parts of the sound therein may actually
constitute sampling. In the purist European tradition, melody poses at the
heart of music. Considering the limited permutations and combinations in
which notes and chords may be combined to create melodies, composers, in
practice, increasingly experiment with different aspects of music to create
new compositions. While the current approach in the field of copyright and
related rights may be befittingly responsive to ‘classical music’, woes of
popular music remain under-addressed. A restrictive approach may also
negatively impact downstream innovation and creativity in the marketplace
for music. In other words, how music plays to the tunes of copyright and
related rights impacts competition in the market for creativity. While it
may be true that to further the objective of creativity, copyright must
afford a high degree of protection to the rightholders, following the
remarkable decision in Pelham, it is a befitting moment to rethink and
reconsider the conditions in which this higher degree of protection limits
follow-on innovation and creativity in the emerging genres of popular music.
Against this background, this chapter looks for balancing of the rights of
the rightholder and samplers and makes normative recommendations to balance
the rightholder and user interests.
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