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Platform rule No. x, own drawing

In a recent blog post, Amy Thomas from the CREATe center at the University of Glasgow suggests that contractual provisions can have – not least detrimental – effects for creativity on digital platforms. She points to uncertainty of users generating content (UGC) on platforms as their creations are regulated by a complex and often confusing “combination of legal, technical and contractual features,“ and particularly issues rising from the multiple (contractual) terms and conditions every platform develops, the T&Cs. Platforms do not disclose properly what they are allowed to do with users’ creativity and related intellectual property (IP), and hide behind legalese contract provisions. Thomas concludes that the complex regulatory “tapestry” eventually leads to an imbalance between platforms and users, perceived regulatory uncertainty of users and even “legal mandates to change the law without the legislative process.“ Instead of fostering creativity, platforms’ regulatory environments put “users in a confusing, and potentially vulnerable, position.“

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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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The Book

Governance across borders: transnational fields and transversal themes. Leonhard Dobusch, Philip Mader and Sigrid Quack (eds.), 2013, epubli publishers.
September 2021
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