Copyright laws; fundamentally, exist to protect and promote creativity. However, the legal ambiguity of the internet, the ongoing changes in societal policies, and continual advancements in digital media and technology, have set a precedent for copyright infringement litigation. The threat of copyright infringement litigation on the grounds of sampled intellectual property, threatens any innovative or creative process; particularly, when they’re arguably defended under fair use, and tenable acts of expression. Consequently, current copyright laws must be revised in accordance with these societal and technological changes to allow for the promotion of creativity and innovation, not hinder them on the basis of legal technicalities as they currently do. This revision is important to discern what constitutes copyright infringement, and what is; essentially, an innovative and creative process protected under fair use, and by extension, practised as a constitutional right to freedom of expression. It is vital to take into account the technological and social changes that have occurred in the recent years in order to achieve a fair set of revised copyright laws.
Innovation and creativity are, in one way or another, founded, inspired, or derived from existing ideas. However, the world’s current social and legal policies, somehow, deny this very concept. The first official copyright act in the world, originated in Great Britain in 1709, and was enacted by the Parliament of Great Britain as the Statute of Anne. The Statute was enforced to protect the original book authors from having their work copied, printed, reprinted, or imported without their permission. With this consideration, a sampled work that is used to create something different, is by no means an exact copy of an original piece, but rather an act of innovation achieved through a creative process. Despite this important distinguishing factor between copying and innovating, people who sample work in the fields of literature, music, films, plays, and art continually face litigation.
In the past decade, the internet has become a platform for people around the globe to sample, or remix work, using digital technology as a tool to facilitate this innovative and creative process.Transformative use is one of the conditions of fair use, and involves taking something old and turning it into something new. Remixing, sampling, and mashups all fall under transformative use, and; therefore, adhere to the policy of fair use under copyright laws. However, even with this consideration, the threat of litigation can still ensue if the copyright owner disagrees with your interpretation of fair use. This is because one of the major factors that weighs against the protection of fair use under copyright law, is whether or not a sampled or remixed piece will deprive the copyrighter of income. Therein lies the problem with the current status of copyright law – if a sampled material is produced in a way that might deprive the copyright owner of income, or at least argued to have that potential effect, the legal road of copyright laws becomes more trickier to navigate. Even if the sampled intellectual property is produced to parody, criticise, or commentate – all conditions of fair use under copyright law, and on a greater scale, tenable acts of freedom of expression, the copyright owner can still take legal action against the producer of the sampled intellectual property.
American Disc Jockey, Girl Talk, real name Gregg Gillis, is renowned for his controversial and unauthorised mashups and digital sampling of licensed music. Though he hasn’t faced any litigation from the respective record artists and copyright owners of the licensed music he used, the threat is very much present. Gillis’ mashups and digital samples involve the use of several licensed tracks for which would be costly to attain clearance for. Even the sampled tracks contain samples from other artists that he would require clearance from to avoid any threat of copyright infringement litigation. The current status of copyright laws don’t take these social and technological changes into account, and presents an unreasonable burden of legal technicalities for anyone who wishes to participate in any sort of creative and innovative work that involves sampling existing work and ideas.
In this light, the current status of copyright law only seems to hinder creativity and innovation, and subvert freedom of expression. The threat of litigation may render people less inclined to participate in any innovative or creative means that involves sampling; thereby, suppressing their constitutional right to freedom of expression. In this respect, the current state of copyright laws conflict with the very purpose and nature of its establishment, which is to protect and promote creativity. Copyright laws need to be revised to take into account the social and technological changes that have occurred, and need to be continually updated with the ongoing changes in society and technology.