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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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Cf “Amici Curiae Brief of Brennan Center for Justice at NYU Law School and EFF in Bridgeport Rehearing” 21 January 2005 The other right in relation to recorded music and the one which is most commonly associated with music sampling is copyright in a sound recording. A sound recording is defined to mean the aggregate sounds embodied in a record and will therefore extend to the recording of sounds on the most common medium, CD. 72 Under s 85(1) of the Copyright Act an owner of copyright in a sound recording has the exclusive right to make a copy of the sound recording, cause the recording to be heard in public, communicate the recording to the public and enter into a commercial rental arrangement in respect of the recording. Copyright infringement in a sound recording will occur where a person who is not the copyright owner does any of the acts within the copyright owner’s exclusive rights. 73 This most commonly occurs in music sampling where a copy of the sound recording is made which embodies the original recording. In order to prove the infringement of copyright, the copyright owner will need to show that the infringing sample was a reproduction of the original material, and that a substantial part of the original sound recording has been reproduced. 74 The first of these requirements is that there must have been a reproduction of the original sound recording. What this requires is that there must be ‘a sufficient degree of objective similarity between the two works’ and ‘some causal connection between the plaintiff’s and defendant’s work’. 75 In the context of music sampling what must be shown is that the sample embodies the actual sounds from the original sound recording. 76 In order to establish this it is useful to rely upon digital sound technology, which is able to detect whether the sounds that are embodied in the original sound recording have been reproduced. 77 This is achieved by isolating the original sound recording and the sample. 78 A sampler is then used to graph the amounts of particular frequencies in the sounds, thereby establishing if there has been a reproduction of the original sound recording. 79 http://www.fepproject.org/courtbriefs/bridgeport.pdf See also Newton v Diamond 349 F. 3d. 591 (6th Cir 2003) Copyright Act 1968 (Cth) s 10(1).

Copyright Act 1968 (Cth) s 101(1).

Fitzgerald and Fitzgerald, above n 33, 144.

Francis Day & Hunter Ltd v Bron [1963] Ch 587, 614.

Helen Townley, ‘Sampling: Weapon of the Copyright Pirate?’ (1993) 12(1) University of Tasmania Law Review 102, 105.




Assuming there has been a reproduction of the original sound recording, it is then necessary to consider the second requirement of whether a substantial part of the original sound recording has been reproduced. 80 The issue which arises here and one which is particularly crucial in regards to music sampling as most cases concern the use of very short samples, is what will amount to a substantial part? The general test for a substantial part was stated by Lord Pearce in Ladbroke (Football) Ltd v William Hill (Football) Ltd 81 as ‘whether a part is substantial must be decided by its quality rather than its quantity.’ This test was affirmed by Mason CJ in Autodesk Inc v Dyason (No 2) 82 who held that ‘in determining whether the quality of what is taken makes it a ‘substantial part’ of the copyright work, it is important to inquire into the importance which the taken portion bears in relation to the work as whole: is it an essential or material part of the work?’. The High Court approved Mason’s CJ statement in Data Access Corporation v Powerflex Services Pty Ltd 83 where it was held that ‘in determining whether something is a reproduction of a substantial part of a [copyright work], the essential features of the [work] should be ascertained by considering the originality of the part allegedly taken.’ The High Court referred to the definition of substantial part again in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd 84. In this case Kirby J explained that a small portion in quantitative terms may constitute a substantial part having regard to its materiality in relation to the work as a whole. 85 More recently in TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) 86 it was held that whether a part taken is a substantial part or not, involves an assessment of the importance of the part taken to the work as a whole.

Applying a strict approach to this test of qualitative importance, it would appear that where a recognisable portion of a song has been sampled then a substantial part will have been reproduced. 87 However, applying a more liberal approach, a substantial part will only have been reproduced where Copyright Act 1968 (Cth) s 14(1).

[1964] 1 WLR 273, 293.

(1993) 176 CLR 300, 305.

(1999) 45 IPR 353, [84]. On the approach taken in the US see Newton v Diamond 349 F. 3d. 591 at 594-6 (6th Cir 2003).

(2004) 78 ALJR 585.

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 78 ALJR 585, 605; see also McHugh ACJ, Gummow and Hayne JJ, 589; TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) [2005] FCAFC 53 (Unreported, Sundberg, Finkelstein and Hely JJ, 26 May 2005) [50].

[2005] FCAFC 53 (Unreported, Sundberg, Finkelstein and Hely JJ, 26 May 2005) [52] Mathew Alderson (ed), Current Issues in Music Law (1998) 62.

the sample takes a portion of the song which has led to its popular appeal or commercial success. This was alluded to in TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) where Finkelstein J held that one of the determining factors is the economic significance of that which has been taken. 88 While the issue of substantial part was not closely considered in Universal Music Australia Pty Ltd v Miyamoto 89, as the samples in question were entire songs, the recent United States decision in Bridgeport Music Inc v Dimension Films Inc, 90 tends to favour the strict approach in determining what will amount to a substantial part. In this case the Court held that even where a small part of a sound recording is sampled, then the part taken is something of value and will therefore infringe copyright. 91 Another type of right which arises in relation to recorded music is that of performers’ rights. Previously under the Copyright Act performers had quite limited rights and did not obtain copyright in the sound recordings of their performances. 92 However, as a result of the Australia-United States Free Trade Agreement and the enactment of the US Free Trade Agreement Implementation Act 2004 (Cth), significant changes have been made to the protection of performers’ rights under the Copyright Act. These changes have included extending the current ambit of performers’ rights by granting performers’ ownership of copyright in the sound recordings of their performances. 93 This is in addition to the existing performers’ rights to authorise recording and broadcasting of the performance, and the right to prevent the knowing copy, sale, distribution or importation of unauthorised recordings. 94 As a result of these changes to the Copyright Act the person at the time of recording who owned the record and the performer who performed the performance are now co-owners of the copyright in equal shares. 95 It should also be noted that provisions have been introduced to prevent performers claiming compensation for infringement of copyright in [2005] FCAFC 54 (Unreported, Sundberg, Finkelstein and Hely JJ, 26 May 2005) [12].

[2003] FCA 812 (Unreported, Lindgren J, 18 July 2003).

401 F3d 647 (6th Cir, 2004); 410 F 3d 792 (6th Cir 2005).

Bridgeport Music Inc v Dimension Films Inc, 401 F3d 647 at 658 (6th Cir, 2004); 410 F 3d 792, 801-802 (6th Cir 2005).

Fitzgerald and Fitzgerald, supra, 124.

Copyright Act 1968 (Cth) s 22(3A).

Copyright Act 1968 (Cth) s 248G.

Copyright Act 1968 (Cth) s 97(2A).

a sound recording 96 and for infringement of performers’ rights arising from the same event. 97 The other type of right which arises in regards to recorded music and has the potential to pose a significant obstacle for music sampling is that of moral rights. Moral rights are personal rights belonging to the author or creator of the copyright work, which exist independently from the economic rights mentioned above. 98 Under the Copyright Act 1968 there are three types of moral rights which are recognised. These are the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship. 99 The first of these moral rights, the right of attribution of authorship involves the right to be identified as the author of the work if any ‘attributable acts’ are done in respect of the work. 100 The second moral right provides the author of the work the right not to have authorship of the work falsely attributed. 101 Given the nature of music sampling, it can be argued that the first of these moral rights is almost always infringed as musicians rarely credit the work they have sampled. 102 However, further questions need to be asked as to whether the sampled material adequately identifies the moral rights holder 103 or whether it was reasonable in all the circumstances not to identify the author? 104 It should also be noted that the right of attribution only applies in relation to a substantial part of the work and therefore in instances where a substantial part has not been reproduced this will not be an issue. 105 The third moral right of integrity involves the right not to have the work subjected to derogatory treatment which would demean the creator’s Under s 85 (1) and as distinct from performers protection, in order to prevents double dipping.

Copyright Act 1968 (Cth) s 248J(4), (5).

Fitzgerald and Fitzgerald, supra, 118.

Copyright Act 1968 (Cth) s 189.

Copyright Act 1968 (Cth) s 193.

Copyright Act 1968 (Cth) s 195AC. Under s 195AG (1) it is an act of false attribution for a person to knowingly deal with an altered work or reproduction of an altered work as if it were the unaltered work or reproduction of an unaltered work of the author. An insubstantial alteration is not covered by this provision: s 195 (2).

Nicola Bogle, ‘Does Black and White Make Gray? A Critical Analysis of the Legal Regime Governing Digital Music Sampling’ (2005) 61 Intellectual Property Forum 10, 17.

Section 195 Copyright Act 1968.

Section 195AR Copyright Act 1968.

Section 195AZH Copyright Act 1968.

reputation. 106 Once again the potential for infringement (in relation to the music and lyrics, but interestingly not the sound recording) arises as sampling by its very nature involves some degree of manipulation, which could lead to the demeaning of the creator’s reputation. 107 However, the critical issue to determine is the extent to which digital sampling debases an original work. Does taking a part of a sound recording and/or placing it in another context impact upon the integrity of the lyrics or the music? As there are no moral rights in the actual sound recording,108 joined with the fact that a sound recording can be made of music and lyrics pursuant to a statutory licence (i.e. the author cannot veto the recording) 109 there seems merit in the suggestion that the moral right of integrity in relation to recorded music must permit a broad range of approaches in the face of any attempt at creative censorship, although racist or other abhorrent forms of communication would be questionable. 110 Once again it should be noted Copyright Act 1968 (Cth) s 195AQ.

Bogle, above n 57.

Copyright Act 1968 (Cth) s 189.

Sections 54-65 Copyright Act 1968.

See further Matthew Rimmer, ‘The Grey Album: Copyright Law and Digital Sampling’ (2005) 114 Media International Australia 40, 48-50; Elizabeth Adeney, ‘Moral Rights/Statutory Licence: The Notion of Debasement in Australian Copyright Law’ (1998) 9 Australian Intellectual Property Journal 36; Michael Blakeney and Fiona Macmillan ‘Journalistic Parody and Moral Rights under Australian Copyright Law’ (1998) 3 Media Arts and Law Review 124. The meaning of debasement (as provided for by s 55(2) Copyright Act 1968 (Cth) – no statutory licence permitted where debasement of the musical work occurs (no equivalent provision in s 59 Copyright Act 1968 (Cth) in relation to lyrics) - which was repealed by the Copyright Amendment (Moral Rights) Act 2000 (Cth)) was considered by the Federal Court of Australia in Schott Musik International GmbH & Co v Colossal Records of Australia Pty Ltd (1997) 37 IPR 1. This case concerned whether a techno adaptation of a musical work by the group Excalibur debased the original work. The Full Federal Court held that in assessing the notion of debasement the court must take a broad approach, paying due regard to the community’s wide spectrum of tastes and values. Accordingly, the techno adaptation was held not to have debased the original work. In Morrison Leahy Music Limited v Lightbond Limited [1993] EMLR 144 Morrit J held that the use of samples from an original work by George Michael did amount to derogatory treatment. In coming to this conclusion, Morrit J favoured the argument of the plaintiffs that the sampling of parts of the music had completely altered the character of the original work.

In Confetti Records v Warner Music [2003] EWCh 1274 (Ch) [150] which concerned an alleged derogatory treatment of a composition in a remix by a UK garage band Lewinson J held ‘that the mere fact that a work has been distorted or mutilated gives rise to no claim, unless the distortion or mutilation prejudices the author’s honour or reputation.’ Here, the court was unable to find that the original author’s honour or reputation had been prejudiced, thus the claim for derogatory treatment failed. Would one be able to argue that the author’s moral rights of integrity in relation to music and that the right of integrity only applies in relation to a substantial part of the work and therefore in instances where a substantial part has not been reproduced this will not be an issue. 111 It should also be noted that in accordance with US Free Trade Agreement Implementation Act 2004 (Cth) moral rights will extend to performers.

Performers’ moral rights will include the right of attribution of performership, the right not to have performership falsely attributed and the right of integrity of performership. However, these changes are yet to come into effect, as they are contingent upon Australia’s obligations under the WIPO Performances and Phonograms Treaty entering into force.

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