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While the recent Google Books ruling by the US Second Circuit has once again proven how the US copyright system is – thanks to its fair use provision – more flexible and adaptable to digital challenges than its European counterpart, in other fields the legal situation is very similar on both sides of the Atlantic. One such field is digital sampling in music, which is the topic of the book “Creative License: The Law and Culture of Digital Sampling” by McLeod and DiCola (2011, Duke University Press).

Cover of the Book

Cover of the Book “Creative License” by Kembrey McLeod and Peter DiCola (2011, Duke University Press)

Sampling is a comparably recent practice where parts of sound recordings are reused in creating new works. According to McLeod and DiCola, “a good appropriated sample has […] a good quality of its own, and it has a strong reference that evokes cultural resonance as well” (p. 99, emphasis added). The latter of the two, cultural resonance, not only adds an additional meta-layer of cultural reference to a song but is also the main reason for legal calamities associated with sampling. As with remix practices more generally, a core characteristic of sampling is that the old remains visible within the new and is not hidden behind a (more or less transparent) veil of originality.

However, this visibility of creative raw materials – that is, samples of previous works – is considered as some form of creative “short-cut” by the courts, which require samplers to clear each and every sample they use, as small and tiny the portion of sound may be. McLeod and DiCola:

Bridgeport Music v. Dimension Films held that no de minimis exception applied to sound recordings. […] [T]he bottom line was, as the ruling stated, ‘Get a license or do not sample.’” (pp. 139, 141)

In Germany, the decision “Metall auf Metall” by Germany’s highest court had identical consequences. The detrimental effects of such a restrictive application of current copyright to the artistic practice of sampling are the reason why sampling-based creativity suffers from permission culture.

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When Sigrid and I researched the organizational network orchestrated by the US non-profit Creative Commons (see our MPIfG Discussion Paper 08/8, PDF), one of the most interesting findings was the benefits of its transnationalization efforts. What initially appeared as a challenge – legal differences between jurisdictions and the perceived need to adapt its alternative copyright licenses accordingly – actually turned out to be a mobilizing and diffusion strategy. At least initially, porting the licenses to different jurisdictions provided a task for locally embedded copyright lawyers, who then became part of a transnational network of affiliate organizations helping to promote Creative Commons licenses. So, at least in this case of private regulation via standards distance between different actors became an asset.

In their most recent paper entitled “Distance as asset? Knowledge collaboration in hybrid virtual communities” (not open acces available yet), economic geographers Gernot Grabher and Oliver Ibert make a more general argument emphasizing the benefits of geographically dispersed communities. They define hybrid communities as “a specific kind of community, which encompasses on the one hand the sphere of professional expertise, and the mundane world of ordinary users, lay-persons, enthusiasts, and hobbyists, on the other” (p. 101). Empirically, the paper compares three types of communities with three cases each:

  • Firm-hosted communities (Huggies Happy Babies Forum, Kraft Food Message Boards, Dell’s Ideastorm Forum)
  • Firm-related communities (IKEA Fans, Nikonians, BMW Luxury Touring Forum)
  • Independent communities (A Swarm of Angels Forum, Sandboarder Forum, DCA Forum)

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The Book

Governance across borders: transnational fields and transversal themes. Leonhard Dobusch, Philip Mader and Sigrid Quack (eds.), 2013, epubli publishers.
September 2019
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All texts on governance across borders are licensed under a Creative Commons Attribution-Share Alike 3.0 Germany License.