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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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Once it has been determined that an infringement has occurred we would then need to determine if a fair dealing exception relating to criticism, review, research, study or news reporting is applicable. 112 It is generally accepted that the scope for a fair dealing argument under the current law in the context of sampling would be very small. 113 In contrast the fair use doctrine in the US has supported some forms of ‘transformative’ sampling most notably in the area of parody. 114 It is also important to note that the current fair dealing provisions in the Copyright Act do not remove liability for the infringement of moral rights.

Sampling Case Law In Australia we have very little case law on the issue of sampling. The closest we have is Universal Music Australia Pty Ltd v Miyamoto 115 a case where entire songs were sampled onto compilation style CDs and it is no lyrics were infringed in the critiquing rap recasting of Roy Orbison’s classic, ‘Oh Pretty Woman’ by 2 Live Crew, held to have the potential to be fair use by the US Supreme Court in Campbell v Acuff-Rose Music Inc 510 U.S 569 (1994)?

Section 195AZH Copyright Act 1968.

Copyright Act 1968 (Cth) ss 40-43, 103A, 103B, 103C, 104.

See the analysis of the fair dealing provisions below in the context of MP3 Blogs.

Campbell v Acuff-Rose Music Inc 510 U.S 569 (1994). See further 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 at 16-17;

Matthew Rimmer, ‘The Grey Album: Copyright Law and Digital Sampling’ (2005) 114 Media International Australia 40 at 44-5; B Challis,“The Song Remains the Same: A Review of the Legalities of Music Sampling” www.musicjournal.org; M Heins, NYU Free Expression Policy Project, “Trashing The Copyright Balance” (2004) http://www.fepproject.org/commentaries/bridgeport.html ; “Sixth Circuit Rejects De Minimis Defense to the Infringement of A Sound Recording Copyright” (2005) 118 Harvard Law Review 1355.

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

surprise that the Federal Court of Australia (Lindgren J.) was not prepared to entertain any excuses based on the concept of music sampling. Universal Music Australia Pty Ltd v Miyamoto 116 concerned an action for copyright infringement brought by a number of recording companies against fives DJ’s, who had remixed a number of tracks from different recordings and then produced a remix CD. The five DJ’s claimed that they had only produced the CD’s in order to raise their profiles and satisfy audience demand. 117 Nonetheless Lindgren J held that the remix CD’s constituted copying of a substantial part of the sound recordings and therefore was an infringement of ss 101 and 103 of the Copyright Act. 118 As this case concerned infringing samples that were entire songs and not smaller parts of songs the Court did not closely consider the crucial issue of what will amount to copying of a substantial part of a sound recording in the context of music sampling.

In a later hearing for damages in Universal Music Australia Pty Ltd v Miyamoto 119. Wilcox J scolded the five DJ’s for their flagrant disregard of the applicant’s rights. 120 His Honour found that all five respondents had deliberately infringed copyright law for ultimate financial gain. 121 He went on to further comment that there was a culture within the music industry of blatant disregard for copyright restrictions, based on an ill-conceived perception that sound recording companies were wealthy multinationals and therefore fair game. 122 However, Wilcox J did acknowledge that ‘[i]f the respondents’ infringements of copyright had been limited to [the] creation of one or more of the compilation CDs for use only by the respondent himself, so as facilitate his presentation on a particular occasion, I would have taken a less serious view of the infringements.’ 123 However, the decisive factor in this case was that the respondents went beyond the production of the compilation CDs for their own use. 124 Instead, the respondents motivated by their own ultimate financial gain knowingly [2003] FCA 812 (Unreported, Lindgren J, 18 July 2003).

Universal Music Pty Ltd v Miyamoto [2004] FCA 982 (Unreported, Wilcox J, 30 July 2004) [12].

Universal Music Pty Ltd v Miyamoto [2003] FCA 812 (Unreported, Lindgren J, 18 July 2003) [23], [26].

[2004] FCA 982 (Unreported, Wilcox J, 30 July 2004).

Universal Music Pty Ltd v Miyamoto [2004] FCA 982 (Unreported, Wilcox J, 30 July 2004) [24].

Ibid.

Ibid.

Ibid [26].

Ibid.

trampled on the applicants’ rights, thereby infringing copyright. 125 Unfortunately this case does not provide clear guidance for digital sampling of smaller amounts of material.

The recent US decision in Bridgeport Music Inc v Dimension Films Inc, 126 has thrown the law on sampling into somewhat of a spin. For years American and UK courts have allowed very small (de minimus) amounts of songs to be sampled but Bridgeport challenges that approach. 127 In Bridgeport the United States Court of Appeals for the 6th Circuit overturned a District Court finding that the very small (de minimus) amount of sampling in this case did not amount to copyright infringement. At issue was the use of a sample from the rap song ‘100 Miles and Runnin’ in the sound track of the movie ‘I Got the Hook Up’. The allegedly infringing sample was a two second, three-note solo guitar ‘riff’ which was copied, the pitch lowered and then looped and extended to 16 beats. 128 This sample then featured in five places with each looped segment lasting for approximately seven seconds. In an action for copyright infringement Higgins J of the Middle District Court of Tennessee held that the infringement was de minimis and therefore not actionable. 129 However, this decision was overturned on appeal with the Court of Appeals for the 6th Circuit finding that ‘no substantial or de minimis inquiry should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording.’ 130 Severely limiting the application of the notion of de minimis use in cases concerning music samples, their Honours held that even where a small part of a sound recording is sampled, the part taken is something of value. 131 In their view this was the only logical conclusion, since if you cannot pirate the whole sound recording there is no reason why you should be able to lift or sample Ibid.





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

B Challis, “The Song Remains the Same: A Review of the Legalities of Music Sampling” www.musicjournal.org; Amici Curiae Brief of Brennan Center for Justice at NYU Law School and EFF in Bridgeport Rehearing 21 January 2005 http://www.fepproject.org/courtbriefs/bridgeport.pdf Bridgeport Music Inc v Dimension Films Inc, 401 F3d 647, 652 (6th Cir, 2004); 410 F 3d 792, 796 (6th Cir 2005).

230 F Supp 2nd 830 (MD Tenn, 2002).

Bridgeport Music Inc v Dimension Films Inc, 401 F3d 647, 654 (6th Cir, 2004); 410 F 3d 792, 798 (6th Cir 2005).

Bridgeport Music Inc v Dimension Films Inc, 401 F3d 647, 658 (6th Cir, 2004); 410 F 3d 792, 801-802 (6th Cir 2005); TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) [2005] FCAFC 53 (Unreported, Sundberg, Finkelstein and Hely JJ, 26 May 2005) [19].

something less than the whole. 132 The message from Bridgeport Music Inc v Dimension Films Inc, is clear, ‘get a license or do not sample’. 133 The Court also made the point that their decision would not serve to stifle creativity as anybody was free to make a new sound recording of the composition. 134 In their view sampling acts to provide a savings in production costs and should not be allowed at the expense of the person who made the original sound recording. 135 This view to some extent underestimates the creative innovation involved in sampling and privileges the notion of the taking of value and saving of production costs.

This decision appears to show a changing attitude within the courts in regards to music sampling infringements. Previously, courts had been willing to allow the use of music samples based on the legal maxim of de minimis, ‘the law cares not for trifles’. This was demonstrated in Newton v Diamond, 136 where the majority held that the unauthorised use of a music sample by the group Beastie Boys, was de minimis and therefore not actionable. In reaching this decision the majority was of the opinion that the use of a brief sample, consisting of three notes separated by a half-step over a background C note, was insufficient to sustain a claim for copyright infringement. 137 Admittedly Newton is a confusing precedent as the Beastie Boys had licenced the sound recording so what was in issue was simply the sampling of the music or score. There is conjecture over whether the strict approach of Bridgeport or the more flexible approach of Newton will become the dominant approach in the US, 138 however, it is suggested that Australian courts in determining whether a substantial part has been reproduced should blend the reasoning of both cases. 139 Bridgeport Music Inc v Dimension Films Inc, 401 F3d 647, 658 (6th Cir, 2004); 410 F 3d 792, 801-802 (6th Cir 2005).

Bridgeport Music Inc v Dimension Films Inc, 401 F3d 647, 657 (6th Cir, 2004); 410 F 3d 792, 801 (6th Cir 2005).

Bridgeport Music Inc v Dimension Films Inc, 401 F3d 647, 657 (6th Cir, 2004); 410 F 3d 792, 801 (6th Cir 2005).

Bridgeport Music Inc v Dimension Films Inc, 401 F3d 647, 657-658 (6th Cir, 2004);

410 F 3d 792, 802 (6th Cir 2005).

349 F 3d 591 (9th Cir, 2003).

Newton v Diamond, 349 F 3d 591, 603 (9th Cir, 2003).

See “Amici Curiae” Brief of Brennan Center for Justice at NYU Law School and EFF in Bridgeport Rehearing 21 January 2005 http://www.fepproject.org/courtbriefs/bridgeport.pdf.

See further: “Sixth Circuit Rejects De Minimis Defense to the Infringement of A Sound Recording Copyright” (2005) 118 Harvard Law Review 1355.

MP3 Blogs What Are MP3 Blogs?

Since their inception in early 2003, MP3 blogs have rapidly become the latest evolution in how people choose to share their favourite music in the digital environment. The concept of an MP3 blog essentially involves the combination of an online journal, with a music column that features MP3 music files that are available for download. 140 Generally, MP3 blogs contain one or two tracks from a CD album available for download. This is usually accompanied by the traditional blog which features a commentary or review on the track and the artist. Readers are then encouraged to download the music, read the accompanying review and share their thoughts online. The MP3 files that are contained on the blogs are generally either available for download directly from the blog itself or via a link to another site where the MP3 files have been uploaded. However, in most cases the MP3 files are usually only available to download for a couple of days. By their very nature most MP3 blogs tend to feature obscure ‘musical nuggets’, those hard to find often outdated tracks which are restricted to a particular musical sub-genre or theme. MP3 blogs tend to fall into two categories, those that provide music with the copyright owner’s permission and those that do not. It is the latter which will have implications for copyright law.

What Does Copyright Law Allow?

Thus far MP3 blogs have managed to avoid the wrath of the music industry and are therefore yet to be legally challenged.141 However, it is has been Rick Ellis, MP3 Blogs Combine Reviews with Music Files (2004) NBC13 Technology http://www.nbc13.com/technology/3369203/detail.html# at 8 April 2005.

Cf. Commonwealth Director of Public Prosecutions v Ng, Tran and Le (Unreported, Sydney Central Local Court, Henson DCM, 18 November 2003) where Peter Tran, Charles Ng and Tommy Le ran a website called MP3 WMA Land. The website essentially provided free MP3 music downloads to 390 commercially available CD albums and 946 singles. The site was said to have received some seven million hits during its operation, with an estimated loss to copyright holders of up to $200 million.

The Court found the three defendants guilty under s 132(2)(b) of the Copyright Act 1968 (Cth) for knowingly distributing copyrighted work, to an extent that prejudicially affects the owner of copyright. Tran and Ng both received prison sentences of 18 months, suspended for three years; in addition to this Tran was fined $5000 and Ng and Le ordered to perform 200 hours community service. See also Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 (Unreported, Tamberlin J, 14 July 2005);



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