Have you ever tried googling the name of your favourite artiste, after getting about a thousand hits on google, you click on a domain name similar to the name you googled. Wham, you enter the website only to discover that it has nothing to do with the “googled” name. In the website is a picture of a cat and information to the effect that the website (together with its domain name) is up for sale. You begin to wonder the nature of the commercial interest in selling and or buying a domain name bearing the name of a celebrated artiste.
Welcome to the world of cybersquatting. Cybersquatting is the bad name registration of trademarked names (and in some cases names in which a common law trademark right exist) as domain names (a domain name is the alphanumeric address of a website on the internet such as 9ja artiste name.com) by third party cybersquatters who do not possess rights in such names. Not only is cyberquatting limited to trademarked marked names but also to names belonging to celebrities and popular artistes. The intention of cybersquatters is usually to sell the domain names back to the owners (mostly at an exorbitant price). This practise of cybersquatting has increased the tension between the owners of trademarked names and the domain name registrants who register these names, it has also presented our traditional judicial process with myriads of problems since the courts in most cases are territorially based while the internet where the domain names are registered is global in nature.
Now consider this “cyberthetical” scenario, a cybersquatter located in the US registers as a domain name www.Tu-Face.com (the name of a popular recording artiste in Nigeria) with a domain registrar (not to be confused with domain name registrant, domain name registrars are business entities which accept and process domain name registrations) in Israel. The question then becomes how can Tu-Face legally proceed against the cybersquatter.
The obvious answer to this question would be in a court of law, but the nature of the issue presents serious jurisdictional challenges for the Nigerian courts, further more and taking into consideration the expensive and slow pace of litigating and the problems associated with enforcing the court decision, one begins to wonder if the cybersquatter will ultimately win having “played a fast one” and hence will “reap from where he did not sow”.
Enter the Internet Corporation for Assigned Names and Numbers (ICANN, a body established to coordinate the Domain Name System), in August 24th, 1999, ICANN adopted the Uniform Domain Name Dispute Resolution Policy (UDRP) applicable in most generic top-level domains (gTLDs). This policy enables trademark owners to resolve the bad faith registrations of their trademarks without recourse to the national courts.
To succeed on a claim against the cyberquatter under the UDRP procedure, the aggrieved party must establish pursuant to paragraph 4(a):
i. That the domain name is identical or confusingly similar to a trademark (or service mark) in which he has rights
ii. That the cybersquatter has no right or legitimate interest in respect of the domain name
iii. That the domain name has been registered and is being used in bad faith by the cybersquatter
Paragraph 4(b) UDRP provides a non-exhaustive illustration of evidence of bad faith registrations while paragraph 4(c) of the UDRP identifies non-exhaustive circumstances which would demonstrate rights or legitimates in the domain name for the purpose set forth under 4(a)(ii).
Pursuant to paragraph 4(i), the remedies available to a complainant shall be limited to the cancellation of the domain name or the transfer of the domain name to the aggrieved party.
In March 2000, Oscar Award winning American Actress Julia Roberts commenced UDRP proceedings against Boyd a cybersquattter who had registered the domain www.juliaroberts.com and had subsequently offered it for sale on eBay. The UDRP panel ordered that the domain name be returned back to her since Julia Roberts had a common law trademark right in her (dare I say celebrated) name and further, that Boyd had no legitimate rights or interest in the name and had registered and used the name in bad faith.
A key advantage of the UDRP procedure is the mandatory implementation of the decisions as domain name registrars are mandated to take the necessary steps to enforce any UDRP decisions, subject to the losing party’s right to file court proceedings and suspend the implementation of the decision under paragraph 4(k) of the UDRP.
It is obvious here that the UDRP has come to complement our legal system, the UDRP quickly resolves domain name disputes as an alternative to litigating the “old fashioned” way. As at the time of blogging these are the names of approved providers for UDRP: Asian Domain Name Dispute Resolution centre (ADNDRC), National Arbitration Forum (NAF) and World Intellectual Property Organization (WIPO).
My best advice for cybersquatters is that “the long arm of UDRP will definitely catch up with you”.
PS: Do you know that Reverse Domain Hijacking (also known as reverse cybersquatting), occurs where a trademark owner attempts to secure a domain name by making false cybersquatting claims against a domain name’s rightful owner.[1] This often intimidates domain name owners into transferring ownership of their domain names to trademark owners to avoid legal action, particularly when the domain names belong to smaller organizations or individuals.
Wednesday, March 31, 2010
Friday, March 26, 2010
MUSIC ON DEMAND: THE INTERNET REDEFINING THE FACE OF MUSIC DISTRIBUTION IN NIGERIA
Today I downloaded my own copy of Nigerian rap artiste Eldee’s latest album “Is it your money?” from Apple’s digital distribution platform iTunes store, at the time of going to press (or more appropriately going to blog) track no. 3 “big boy” featuring American rap artiste Yung Joc was in full auto blast, my head nodding and head phone cords keep dangling around my workstation.
Sometime back while I was on exchange at the Strathclyde University in Glasgow and in serious need of some Naija (for Nigerian) music. I sent my brother via email, a long list (longer than my arms actually) of my favourite albums, 10 days later, a package from DHL arrived at my flat on 82b Candleriggs street. I couldn’t help thinking the amount it must have cost my brother in granting my request. Ordinarily each album would not have cost me anything more than $1.10
Much love goes to Tim Berners-Lee for inventing the internet, now wherever I’m at, so long as I have access to the internet, I can digitally download my favourite music (most times for a price though).
The internet has created new business models and has created opportunities for recording labels and artistes in the distribution of their music. With the rapidly expanding internet infrastructure and broad band access in Nigeria, music downloads seems to have found its way as an alternative channel for the distribution of music allowing consumers to bypass the traditional model (CD sales). Coupled with this is the rising numbers of music stores that legally sell digital singles and albums such as iTunes store, Tune Tribe, eMusic, Amazon MP3 and many others.
While the first digital download was offered in 2001 by Music net and Press play, it was 2003 that saw the rise in digital music download. According to International Federation of the Phonographic Industry (IFPI) in 2005, the market for digital music expanded between 2003 and 2004 with copyright collectives receiving revenues for these downloads for the first time.
As beautiful and interesting as this innovative model of distributing music may seem, it still poses serious regulatory and policy challenges for the Nigerian government.
1. Broad band regulatory framework
In other to enjoy offerings form online music stores, there has to be a robust framework for broad band access. Despite the heavy investment currently been expended in the Nigerian Telecoms/IT industry, internet penetration still leaves much to be desired. According to statistics from the International Telecommunications Union (ITU) only 7.4% of Nigeria’s 149,229,090 (please don’t quote me on this census figure!) had access to the internet in 2009. Though the Universal Service Regulations enacted in 2007 aims to provide access or a reasonable access to internet service, there is nothing on ground (especially in the rural areas) to show for it. Though I am optimistic (like we always are) that the benefits of the regulations would be reaped in the nearest future.
2. Protection of the Copyright in Digital Music
According to American Professor of Law, Lessig (1999), “the fear is that cyberspace will become a place where copyright can be defeated”. On this ground, it becomes necessary for the Nigerian government to address this issue of digital piracy by enacting the appropriate law(s). WIPO’s Copyright Treaty (WCT) and its counterpart the Performances and Phonographs Treaty (WPPT) both of 1996 addresses these copyright challenges the internet has brought along with it, though these treaties are yet to enter in force in Nigeria.
It is instructive to note that the illegality of music download was made manifest in the Napster case of US and Pirate Bay case of Sweden.
3. Interoperability and Digital Rights Management (DRM)
Interoperability is the ability of different programs to exchange information and mutually use the information being exchanged. It then becomes necessary for the development of an acceptable and uniform standard of the content being distributed as this would enable its operability across different platforms. Open source comes to mind here, this should be the same for DRM which is also used to enable access to the digital content upon the payment of the requisite price. DRM solutions have also created privacy and fair use challenges for the consumers. These issues need to be properly addressed by the Nigerian government.
As Nigerian consumers begin to trend towards digital music, it becomes necessary for the government and relevant stakeholders to carry out comprehensive studies that will satisfy the needs of the government, consumers and the record labels/artistes. After all, it’s in the interest of creativity as Albert Einstein said that “Technological change is like an axe in the hands of a pathological criminal”
PS: Do you know that the Digital Economy Bill currently been considered in the UK requires ISPs to make available to music owners information concerning chronic online pirates? Now talk about enjoying some internet privacy!
Sometime back while I was on exchange at the Strathclyde University in Glasgow and in serious need of some Naija (for Nigerian) music. I sent my brother via email, a long list (longer than my arms actually) of my favourite albums, 10 days later, a package from DHL arrived at my flat on 82b Candleriggs street. I couldn’t help thinking the amount it must have cost my brother in granting my request. Ordinarily each album would not have cost me anything more than $1.10
Much love goes to Tim Berners-Lee for inventing the internet, now wherever I’m at, so long as I have access to the internet, I can digitally download my favourite music (most times for a price though).
The internet has created new business models and has created opportunities for recording labels and artistes in the distribution of their music. With the rapidly expanding internet infrastructure and broad band access in Nigeria, music downloads seems to have found its way as an alternative channel for the distribution of music allowing consumers to bypass the traditional model (CD sales). Coupled with this is the rising numbers of music stores that legally sell digital singles and albums such as iTunes store, Tune Tribe, eMusic, Amazon MP3 and many others.
While the first digital download was offered in 2001 by Music net and Press play, it was 2003 that saw the rise in digital music download. According to International Federation of the Phonographic Industry (IFPI) in 2005, the market for digital music expanded between 2003 and 2004 with copyright collectives receiving revenues for these downloads for the first time.
As beautiful and interesting as this innovative model of distributing music may seem, it still poses serious regulatory and policy challenges for the Nigerian government.
1. Broad band regulatory framework
In other to enjoy offerings form online music stores, there has to be a robust framework for broad band access. Despite the heavy investment currently been expended in the Nigerian Telecoms/IT industry, internet penetration still leaves much to be desired. According to statistics from the International Telecommunications Union (ITU) only 7.4% of Nigeria’s 149,229,090 (please don’t quote me on this census figure!) had access to the internet in 2009. Though the Universal Service Regulations enacted in 2007 aims to provide access or a reasonable access to internet service, there is nothing on ground (especially in the rural areas) to show for it. Though I am optimistic (like we always are) that the benefits of the regulations would be reaped in the nearest future.
2. Protection of the Copyright in Digital Music
According to American Professor of Law, Lessig (1999), “the fear is that cyberspace will become a place where copyright can be defeated”. On this ground, it becomes necessary for the Nigerian government to address this issue of digital piracy by enacting the appropriate law(s). WIPO’s Copyright Treaty (WCT) and its counterpart the Performances and Phonographs Treaty (WPPT) both of 1996 addresses these copyright challenges the internet has brought along with it, though these treaties are yet to enter in force in Nigeria.
It is instructive to note that the illegality of music download was made manifest in the Napster case of US and Pirate Bay case of Sweden.
3. Interoperability and Digital Rights Management (DRM)
Interoperability is the ability of different programs to exchange information and mutually use the information being exchanged. It then becomes necessary for the development of an acceptable and uniform standard of the content being distributed as this would enable its operability across different platforms. Open source comes to mind here, this should be the same for DRM which is also used to enable access to the digital content upon the payment of the requisite price. DRM solutions have also created privacy and fair use challenges for the consumers. These issues need to be properly addressed by the Nigerian government.
As Nigerian consumers begin to trend towards digital music, it becomes necessary for the government and relevant stakeholders to carry out comprehensive studies that will satisfy the needs of the government, consumers and the record labels/artistes. After all, it’s in the interest of creativity as Albert Einstein said that “Technological change is like an axe in the hands of a pathological criminal”
PS: Do you know that the Digital Economy Bill currently been considered in the UK requires ISPs to make available to music owners information concerning chronic online pirates? Now talk about enjoying some internet privacy!
Thursday, March 25, 2010
THE FINE ART OF DISSING: HOW NOT TO PUSH YOUR LUCK
Grab your gl..ks when you see 2pac,
Call the cops when you see 2pac, uh,
Who shot me but your pu..ks didn’t finish,
Now you ‘bout to feel the wrath of a menace,
n..gga I hit ‘em up
This chorus is from the 1996 song “Hit ‘Em Up” by the late 2pac featuring his outlawz. This song was particularly directed at the late Notorious B.I.G and Sean “Puffy” Combs (now known as P.Diddy or simply Diddy).
Fast-forward to Nigeria 2008 and hear:
baba dat baba, you not a father,
you got intellect myopia,
so when I dis [emphasis mine] a baba,
it’s not Ethiopia.
This lyrics form a part of a song titled “Talking to you” performed by popular Nigerian rap artiste Modenine and featuring another Nigerian R&B crooner Banky W. This song is believed by many Nigerians to be a diss song directed at fellow Nigerian rap artiste Rugged man (Ruggedy baba).
According to Urban dictionary, “diss is a shortened version of disrespect”. A diss song or tract primarily intends to attack or express a negative opinion at another person or (most commonly another artiste). This particular style of singing has found its way into the new age hip-hop genre and is constantly contributing to the hip-hop rivalry tension.
While many recording artiste may not be aware, a diss song if not done within the limits of the law, may actually incur liability for the disser for the Nigerian tort of Defamation.
Defamation is the tort or civil wrong of publishing a false and derogatory statement against another person without lawful justification. This publication tends to:
I. Injure his reputation in the opinion of right thinking members of his community; or
II. Expose him to hatred, contempt or ridicule; or
III. To cause other persons to shun or avoid him; or
IV. To discredit him in his office, trade or profession; or
V. To injure his financial credit
Basically there are two types of defamations and a diss song is implicated in both types.
I. Libel is defamation by means of writing, print or some other permanent form. The lyrics contained in a diss song are considered to be in writing and hence would come within the meaning of libel if it meets the criteria for defamation.
II. Slander is defamation by way of spoken words (or in this case by singing). A defamatory diss song would also come under the meaning of slander since they are in fact addressed to the ear, while libel is addressed to the eye.
For the disser to become responsible for the tort of defamation, the aggrieved party must prove in the court that the (i) words in the diss song were in fact defamatory, (ii) that the word referred to him, (iii) that the words were published, that is communicated to at least one other person other than the aggrieved. For the disser the defences to enable him escape liability for defamatorily dissing are:
I. Truth: This is an absolute defence to a claim by the aggrieved only where the words complained of are in fact true in substance.
II. Fair comment which arises from our fundamental freedom of expression. In order to succeed on this defence, the disser must be able to establish that the words in the diss song referred to a matter of public interest (the meaning of this varies according to individual cases), the diss song must have represented an opinion and not an assertion of fact truly stated, that the words or comments from the diss song must have been honestly made and not borne as a result of malice.
All said, Nigerian artistes intending to engage in the fine art of dissing, always remember the limits of the law or you will be pushing your luck too far.
PS: Did you know that in 2007, American rap artiste 50 cent declared that if fellow American rapper Kanye West out sold him in the first week, he would retire from the rap scene, Kanye eventually did out sell him with 957,000 copies to his 691,000. Last time I checked 50 cent is still making music, his last album released in 2009 was titled “Before I self destruct”. I hear the working title of his album due to be released this year is “Black Magic”.
Call the cops when you see 2pac, uh,
Who shot me but your pu..ks didn’t finish,
Now you ‘bout to feel the wrath of a menace,
n..gga I hit ‘em up
This chorus is from the 1996 song “Hit ‘Em Up” by the late 2pac featuring his outlawz. This song was particularly directed at the late Notorious B.I.G and Sean “Puffy” Combs (now known as P.Diddy or simply Diddy).
Fast-forward to Nigeria 2008 and hear:
baba dat baba, you not a father,
you got intellect myopia,
so when I dis [emphasis mine] a baba,
it’s not Ethiopia.
This lyrics form a part of a song titled “Talking to you” performed by popular Nigerian rap artiste Modenine and featuring another Nigerian R&B crooner Banky W. This song is believed by many Nigerians to be a diss song directed at fellow Nigerian rap artiste Rugged man (Ruggedy baba).
According to Urban dictionary, “diss is a shortened version of disrespect”. A diss song or tract primarily intends to attack or express a negative opinion at another person or (most commonly another artiste). This particular style of singing has found its way into the new age hip-hop genre and is constantly contributing to the hip-hop rivalry tension.
While many recording artiste may not be aware, a diss song if not done within the limits of the law, may actually incur liability for the disser for the Nigerian tort of Defamation.
Defamation is the tort or civil wrong of publishing a false and derogatory statement against another person without lawful justification. This publication tends to:
I. Injure his reputation in the opinion of right thinking members of his community; or
II. Expose him to hatred, contempt or ridicule; or
III. To cause other persons to shun or avoid him; or
IV. To discredit him in his office, trade or profession; or
V. To injure his financial credit
Basically there are two types of defamations and a diss song is implicated in both types.
I. Libel is defamation by means of writing, print or some other permanent form. The lyrics contained in a diss song are considered to be in writing and hence would come within the meaning of libel if it meets the criteria for defamation.
II. Slander is defamation by way of spoken words (or in this case by singing). A defamatory diss song would also come under the meaning of slander since they are in fact addressed to the ear, while libel is addressed to the eye.
For the disser to become responsible for the tort of defamation, the aggrieved party must prove in the court that the (i) words in the diss song were in fact defamatory, (ii) that the word referred to him, (iii) that the words were published, that is communicated to at least one other person other than the aggrieved. For the disser the defences to enable him escape liability for defamatorily dissing are:
I. Truth: This is an absolute defence to a claim by the aggrieved only where the words complained of are in fact true in substance.
II. Fair comment which arises from our fundamental freedom of expression. In order to succeed on this defence, the disser must be able to establish that the words in the diss song referred to a matter of public interest (the meaning of this varies according to individual cases), the diss song must have represented an opinion and not an assertion of fact truly stated, that the words or comments from the diss song must have been honestly made and not borne as a result of malice.
All said, Nigerian artistes intending to engage in the fine art of dissing, always remember the limits of the law or you will be pushing your luck too far.
PS: Did you know that in 2007, American rap artiste 50 cent declared that if fellow American rapper Kanye West out sold him in the first week, he would retire from the rap scene, Kanye eventually did out sell him with 957,000 copies to his 691,000. Last time I checked 50 cent is still making music, his last album released in 2009 was titled “Before I self destruct”. I hear the working title of his album due to be released this year is “Black Magic”.
Wednesday, March 24, 2010
REMIXING CREATIVITY: MUSIC SAMPLING AND THE NIGERIAN COPYRIGHT ACT
I once heard a popular Nigerian recording artiste perform a song titled the name of a popular suburb in Lagos, I couldn’t help but notice that the background beats had been lifted from an earlier song in the 2007 album of a Barbadian R&B singer titled “Good Girl Gone Bad”.
The current state of our musical culture has encouraged and facilitated (music) sampling; sampling is the incorporation of a piece of recorded music (“a sample”) into a new recording. This process offers infinite possibilities for remixing the original work and “looping” which is a technique whereby a single sample is repeated continuously over an extended period of time. At other times, the sample may be of vocals and or lyrics of the original musical recording. Sampling of pre-existing musical recordings usually offers the sampling artiste (and or music producers) with significant cost benefits as the need for engaging the services of musicians for the live performances is drastically reduced.
As musical recordings are protected under the Nigerian Copyright Act of Nigeria (Cap. 68, LFN 1990) In particular section 1 of this Act grants protection to both “musical works” and “sound recordings”, so sampling artistes run the risk of committing copyright infringement by breaching the exclusive rights granted under this Act to the “first author” of the original music recording. With respect to musical works, the rights contemplated are enumerated under Section 5 (1) (a); while the rights potentially implicated in sound recordings have also been listed in Section 6 of this Act.
The legal test (usually applied in Common Law jurisdictions of both the UK and US) for determining whether the use of a sample infringes the copyright in a work begins with the question of whether the sample constitutes a substantial part of the original music recording. A double pronged question arises from this inquiry and must be answered consecutively and affirmatively before a legal claim founded on music sampling is bound to succeed in a law court. The first question asks the question whether the original work is actually protected under the Copyright Act and the second question concludes by asking whether the sample constitute a substantial part of the original work.
Traditionally, common law courts have looked at a number of factors in determining whether a substantial lifting has occurred. Among the factors are whether an ordinary lay listener would find a substantial similarity between the pre-existing recording and the new work, the intention of the sampling artiste and whether or not the two parties are in competition. Though as clear cut as these factors may seem, this test is usually far from clear cut and straight forward and the question of whether copyright infringement has occurred by virtue of sampling will depend very much on the facts and merits of each individual case.
In the English case of BBC v Precord Ltd (SRIS C/89/91 11 November 1991 Chancery Division), the court injuncted the defendants from releasing a recording which had sampled 63 words from the plaintiff’s unedited version of its recording. According to the court, BBC had a property right in the sound recording and was entitled to protection unless special circumstances are shown. This decision was also reinforced by a latter decision where the court held in Produce Records Limited v BMG Entertainment International UK and Ireland Limited (1999) that sampling sound recordings without the necessary clearance was prima-facie infringement. This case arose out of the decision of the plaintiff Produce Records to enforce their right in a song titled “Higher and Higher” which was produced by them and which a seven-and-half-second section had been incorporated in the song “Macarena” produced by the defendant BMG.
Irrespective of sampling and the risk of committing copyright infringement, the Copyright Act also provides some sort of safe haven for sampling artistes, as the limits of the exclusive rights granted by this Act is curtailed by the doctrine of fair dealing/fair practice specified under the second schedule of this Act. This doctrine allows someone (including a sampling artiste and music producers) to use a work in a reasonable manner without the need to seek the permission of the owner. The conditions necessitating this fair dealing have been specified under the second schedule of the Act. In particular (a) provides:
the doing of any of the acts mentioned in the said section 5 by way of fair dealing [emphasis mine] for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its authorship, except where the work is incidentally included in a broadcast;
(b) also provides:
doing of any of the aforesaid acts by way of parody, pastiche, or caricature
Hence, it means if any of these conditions is met as specified under these provisions then the sampled music would definitely come within the ambit of the protection offered under the fair dealing/fair use doctrine.
In a US case, a New York Federal court upheld this doctrine by dismissing a claim instituted against American Rap artistes Ghostface Killar, Raekwon (both of the Wu-Tang clan fame) and the Alchemist for copyright infringement. The plaintiffs in this case had accused the rappers of infringement in the song “What a wonderful world”. The rappers successfully argued that while the song’s lyrics where adapted from this song, they were protected as fair use under the US Copyright Act. According to the court, the lyrics were clearly a parody, intended to criticize and ridicule the cheerful perspective of the original song.
Despite the existence of the substantial use test and the fair dealing/fair use defense, the best way for sampling artistes to avoid litigation and liability under the Act is to obtain clearance from the original owner of the musical recording or the relevant collective management organization.
Victoroff (1996) is of the opinion that sampling is:
At its best sampling benefits society by creating a valuable new contribution to modern music literature. At its worst, sampling is vandalization and stealing...
I find it so so difficult to arrive at a divergent view, now it seems my case is well rested.
PS: Has anyone heard the theme song for the 2010 World cup in South- Africa. The Nigerian version contains “sampled” portions of the original song performed by Somalian Artiste K’aan. Nigeria’s Banky W and M.I’s vocal performance was awesome.
The current state of our musical culture has encouraged and facilitated (music) sampling; sampling is the incorporation of a piece of recorded music (“a sample”) into a new recording. This process offers infinite possibilities for remixing the original work and “looping” which is a technique whereby a single sample is repeated continuously over an extended period of time. At other times, the sample may be of vocals and or lyrics of the original musical recording. Sampling of pre-existing musical recordings usually offers the sampling artiste (and or music producers) with significant cost benefits as the need for engaging the services of musicians for the live performances is drastically reduced.
As musical recordings are protected under the Nigerian Copyright Act of Nigeria (Cap. 68, LFN 1990) In particular section 1 of this Act grants protection to both “musical works” and “sound recordings”, so sampling artistes run the risk of committing copyright infringement by breaching the exclusive rights granted under this Act to the “first author” of the original music recording. With respect to musical works, the rights contemplated are enumerated under Section 5 (1) (a); while the rights potentially implicated in sound recordings have also been listed in Section 6 of this Act.
The legal test (usually applied in Common Law jurisdictions of both the UK and US) for determining whether the use of a sample infringes the copyright in a work begins with the question of whether the sample constitutes a substantial part of the original music recording. A double pronged question arises from this inquiry and must be answered consecutively and affirmatively before a legal claim founded on music sampling is bound to succeed in a law court. The first question asks the question whether the original work is actually protected under the Copyright Act and the second question concludes by asking whether the sample constitute a substantial part of the original work.
Traditionally, common law courts have looked at a number of factors in determining whether a substantial lifting has occurred. Among the factors are whether an ordinary lay listener would find a substantial similarity between the pre-existing recording and the new work, the intention of the sampling artiste and whether or not the two parties are in competition. Though as clear cut as these factors may seem, this test is usually far from clear cut and straight forward and the question of whether copyright infringement has occurred by virtue of sampling will depend very much on the facts and merits of each individual case.
In the English case of BBC v Precord Ltd (SRIS C/89/91 11 November 1991 Chancery Division), the court injuncted the defendants from releasing a recording which had sampled 63 words from the plaintiff’s unedited version of its recording. According to the court, BBC had a property right in the sound recording and was entitled to protection unless special circumstances are shown. This decision was also reinforced by a latter decision where the court held in Produce Records Limited v BMG Entertainment International UK and Ireland Limited (1999) that sampling sound recordings without the necessary clearance was prima-facie infringement. This case arose out of the decision of the plaintiff Produce Records to enforce their right in a song titled “Higher and Higher” which was produced by them and which a seven-and-half-second section had been incorporated in the song “Macarena” produced by the defendant BMG.
Irrespective of sampling and the risk of committing copyright infringement, the Copyright Act also provides some sort of safe haven for sampling artistes, as the limits of the exclusive rights granted by this Act is curtailed by the doctrine of fair dealing/fair practice specified under the second schedule of this Act. This doctrine allows someone (including a sampling artiste and music producers) to use a work in a reasonable manner without the need to seek the permission of the owner. The conditions necessitating this fair dealing have been specified under the second schedule of the Act. In particular (a) provides:
the doing of any of the acts mentioned in the said section 5 by way of fair dealing [emphasis mine] for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its authorship, except where the work is incidentally included in a broadcast;
(b) also provides:
doing of any of the aforesaid acts by way of parody, pastiche, or caricature
Hence, it means if any of these conditions is met as specified under these provisions then the sampled music would definitely come within the ambit of the protection offered under the fair dealing/fair use doctrine.
In a US case, a New York Federal court upheld this doctrine by dismissing a claim instituted against American Rap artistes Ghostface Killar, Raekwon (both of the Wu-Tang clan fame) and the Alchemist for copyright infringement. The plaintiffs in this case had accused the rappers of infringement in the song “What a wonderful world”. The rappers successfully argued that while the song’s lyrics where adapted from this song, they were protected as fair use under the US Copyright Act. According to the court, the lyrics were clearly a parody, intended to criticize and ridicule the cheerful perspective of the original song.
Despite the existence of the substantial use test and the fair dealing/fair use defense, the best way for sampling artistes to avoid litigation and liability under the Act is to obtain clearance from the original owner of the musical recording or the relevant collective management organization.
Victoroff (1996) is of the opinion that sampling is:
At its best sampling benefits society by creating a valuable new contribution to modern music literature. At its worst, sampling is vandalization and stealing...
I find it so so difficult to arrive at a divergent view, now it seems my case is well rested.
PS: Has anyone heard the theme song for the 2010 World cup in South- Africa. The Nigerian version contains “sampled” portions of the original song performed by Somalian Artiste K’aan. Nigeria’s Banky W and M.I’s vocal performance was awesome.
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