Fair Use : Ideas for Change
Though the fair use doctrine allows for free appropriation in cases of parody and commentary, the provisions are judicially constrained by conservative courts. The fair use provision of commentary should be broadened to cover "any commentary" regardless of who is the target. Partial or fragmentary use should be allowed for any reason, so long as it meets the other tests in the fair use analysis. This broadening would not effect the copyright law's governance and efficiency in cases of bootlegging and piracy of whole works.
A
more realistic approach, however, may be a Congressionally-enacted statutory
licensing scheme for sampling. In this scheme, copyright owners would
not be able to object to an appropriator's use, yet must be credited and
compensated for that use in the form of royalties derived from album sales.
Though, in essence, this strips the original author of his or her moral
rights, under this scheme at least the copyright owner gets something.
Without fear of being sued or jailed, samplists would be encouraged to
create better compositions as well as promote them more openly without
restraint. The symbiosis would result in more freedom for samplists and
more money for copyright owners.
Some advocates of free appropriation argue that the Copyright Act should not apply to music at all. The statute covers textual and musical works alike. It is important to note that there are nearly three hundred thousand (300,000) words in the English language, yet there are only twelve (12) notes of music. To apply the Copyright Act equally to both is absurd. Pragmatic anarchists recommend a philosophy of free music. FN1. Because music unfolds in time and not in space, because it is serial and not parallel, linear not static, a little sample goes a long way.
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Footnotes:
Footnote
1 : See The Free Music Philosophy, Volume 1.4 (June 17, 1998)
RAM.ORG:
"First, limiting your creativity to specific audiences, especially
based on monetary reasons, is shirking existential responsibility and
destructive to society as a whole; today, when people create, they're
creating by standing on the shoulders of giants. Second, it's fair that
people pay for music only if they like it after listening to it first;
the present system does not allow for this for all forms of music. Third,
in order to prevent 'illegal' copies from being made, a tremendous burden
(restricting legitimate expression) must be placed on all individuals
to circumvent what is human nature. This is a rather impossible task and
is probably the reason the AHRA was passed in the first place. Fourth,
the derivative works clause prevents the incorporation of your own ideas
to enhance other people's expressions, and this is abridges the free exchange
of ideas and information. Finally, the current practices of the recording
industry, which exploit both artist and consumer in the interests of profit,
are unethical, and one must take steps to force changes.
"You, the artist, will have more power with your recordings with this approach. You can be as creative as you want and spread your music around and no one can stop you, as they did with Nirvana's In Utero, and say that you need to change the production on this album because it won't sell as is. Perhaps we can then see individual music instead of music for the masses. Given the nature of how you can spread your music around the Internet, you will be enriching the amount of information in the net as well as reaching audiences in ways you've never dreamt of before! "In a more futuristic sense, the major record label's stronghold on what kind of music gets heard by the people will be broken. Music has become an institutionalized industry that churns out musical product. The music industry restricts copying and other uses of music in order to maximize profit, but this comes at a great cost, that of abridging the spread of creativity. This will change. It is now possible for performers to spread their musical message directly to fans via high-technology, thus enriching the artist and the music world in all possible ways. Music is about creative and passionate ideas. Not product.
"Thomas Jefferson once said, 'That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.'"
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