Intellectual property

Fair Dealing Vs. Music Sampling: Balancing Artistic Expression And Copyright Protection

INTRODUCTION

Creativity is the fuel that drives the digital era, and intellectual property rights exist to protect the creative expression of individuals. There are various aspects of intellectual property rights protection, viz: trademark, copyright, patent, and trade secrets.[1] This discourse will focus on copyright protection while exploring the exceptions to such rights and the extent to which the exceptions will or may apply.

The Nigerian Copyright Act of 2022 will serve as the primary legislation for this discourse. The objectives of the Act are to protect the rights of authors and ensure that they are rewarded and recognized for their intellectual efforts as well as provide appropriate limitations and exceptions to guarantee access to creative works.[2] Copyright protects an original work that is fixed in a medium of expression such that it can be perceived, reproduced, or communicated.[3] Section 4 of the Copyright Act provides that no formality shall be required for a work to be eligible for copyright. Hence, copyright protection will accrue to a work[4] if the work is original and fixed in a medium of expression.

Copyright is indicative of two rights viz; the right of the copyright owner to enjoy protection against the unauthorized use of the work on the one hand, and the right of the copyright user to benefit from the copyrighted work which gives room for further expression, on the other hand.[5]  The interplay of the protection of rights and artistic expression births a compelling narrative. One that delves into the depths of fair dealing (a tool for artistic expression) as a potential refuge or exception for navigating the seemingly complex terrain of music sampling. An original work can be used with prior permission from the copyright owner. However, there are exceptions to this principle, one of which is fair dealing or fair use. This article examines the scope of usage and expression permitted under fair dealing and probes further to unravel if the same can be employed as a justification and refuge for not obtaining permission and a license for sampling a song.

FAIR DEALING VS. MUSIC SAMPLING: THE MEANING

Fair dealing is the term used in common law jurisdictions to qualify the exception to the protection offered by copyright and is rooted in the notion of fairness. The Act, though incorporating the doctrine of fair dealing, did not define what fair dealing is. Generally, fair dealing is the use of copyrighted material for a limited and transformative purpose, such as comment, criticism, or parody, and such use can be done without the permission of the copyright owner.[6] Stated differently, fair dealing is the use of copyrighted material by a person other than the author, without prior permission from  the copyright owner for the use of such work. The purpose largely depends on the jurisdiction’s legislation and policies. Sections 20, 21, 22 & 23 of the Copyright Act, 2022,  provide for what qualifies as fair dealing. Hence, it will constitute a defense against a claim of copyright infringement, where the usage or expression falls within any of the purposes listed to qualify as fair dealing. However, it must be noted that not all usage for the purposes listed under the sections would be fair dealing, as will be considered below.

Music Sampling, on the other hand, is the act of mechanically or digitally taking a portion of a previous sound recording and reusing it by incorporating it into a new song.[7] Sampling also encompasses copying sound to use the lyrics or pattern of notes from an underlying musical work.[8] Sampling is common in genres where artists typically use pre-recorded music and sounds to create new work. Music, like several other types of creative expression, is protected by copyright law.[9] Hence, a license will be required to create a new work that samples a pre-existing sound or lyrics that belong to another  (a derivative work).  In most cases, the person seeking to sample will have to obtain permission from both the copyright owner of the musical composition (usually administered by a publisher) and the copyright owner of the sound recording otherwise known as masters (the record label or artist)[10], to avoid copyright infringement.

FAIR DEALING IN COPYRIGHT: THE SCOPE

Copyright is an embodiment of rights that the author or originator of intellectual works is entitled to. This right grants the author or originator of the work the exclusive privilege to (a) reproduce the work; (b) publish the work; (c) perform the work; (d) distribute the work; (e) make an adaptation of the work; and (f) authorize the exploitation of any of these rights by a third party[11].  Section 2 of the Copyright Act provides for works that are eligible for copyright, as follows:

  1. literary works;
  2. musical works;
  3. artistic works;
  4. cinematograph films;
  5. sound recordings; and
  6. broadcasts.

Notably, musical works and sound recordings are eligible for copyright protection. The copyright in a song encompasses legal ownership of the musical composition and sound recording. Stated differently, there are two distinct copyrights in a song: a copyright in the musical composition (melodies, notes, chords, beats, and lyrics) and a copyright in the masters (audio or sound recording of that underlying composition)[12].  The copyright in a composition is typically controlled by a music publisher, where the songwriter or producer is registered with a publisher. At the same time, the sound recording (masters) is typically owned by the recording artist or label(as the case may be). The implication of copyright ownership in a song will mean that, amongst others, the owner of such copyright has the exclusive right to reproduce or adapt the work as well as license such rights.[13] In sampling a song, the person sampling takes a portion of a previous sound recording (copies the sound) or uses the lyrics or pattern of notes, and incorporates it into a new song. This gives rise to two significant issues.

First, can the song created by infusing (adapting) the work of another be protected under copyright? A musical work is eligible for copyright protection if it has an original character and is in a fixed medium of expression.[14] Section 2(4) further provides that a work shall not be ineligible for copyright by reason only that the making of the work or the doing of any act in relation to the work involved an infringement of copyright in some other works. Consequently, a song(musical work/sound recording) will be granted copyright protection in so far as it meets the foregoing criteria.

Secondly, is using the sound recording or lyrics belonging to another to create a new work(song) allowed under the Copyright Act? If yes, what is the permissible extent and at what point can it be described as copyright infringement? The Act permits the use of a musical work or sound recording belonging to another without authorization of the owner, under the circumstances provided for in sections 20, 21, 22, and 23 of the Act. This exception is generally for research, private study, education, satire, criticism, review, news reporting, etc. In measuring the extent to which such usage is permitted, the Act provides certain factors to consider in determining whether the use of a work in any particular case is fair dealing. The factors include — (i) the purpose and character of its usage, (ii) the nature of the work, (iii) the amount and substantiality of the portion used in relation to the work as a whole, and (iv) the effect of the use upon the potential market or value of the work.[15] The factors are analyzed hereunder as follows:

  1. Purpose and Character of Usage: This factor is used to ascertain where it is gotten from and the purpose or character of its usage. Is the new work commenting, criticizing, or educating people about the previous work? Where the new work is used as a criticism, parody, satire, or for education, it is most likely to be considered fair dealing.[16]
  2. Nature of the use: If the new work is used or sold for profit or deployed for commercial purposes, then it does not qualify as fair dealing.[17] However, where the work is not for profit, then it is likely to be considered fair dealing.
  3. Amount of Substantiality: What amount of the previous work is to be used in the new work? The quantity and quality of the portion to be sampled or used from the previous work will determine whether it is fair dealing or not.
  4. Effect of Use on Market Value:  Is the new work hurting or replacing the market of the previous work? Are people now purchasing the new work instead of the original? If the answer to any of this is affirmative, then such use cannot be described as fair dealing.

Notably, there is no mention of music sampling as one of the exceptions under the defense of fair dealing as provided for in the Act. However, if sampling were to be considered fair dealing in any case, then the factors listed above would be employed in determining whether such use can be considered fair dealing or not.

BALANCING ARTISTIC EXPRESSION AND COPYRIGHT PROTECTION

Artistic expression can be described as the ability of a person to use creativity and imagination to communicate feelings, ideas, or messages through art. It borders essentially on the expression of self in a unique and meaningful manner, whether through painting, music, writing, or any other form of creative expression. While it is true that artistic expression in music will sometimes require the artist to incorporate elements or sounds that are a subject of copyright belonging to another, to put together or create a new musical work, it is also essential to note that such work qualifies as intellectual property which is protected by copyright. Regardless of how creative one is in transforming the sampled elements to be incorporated in a composition, it will constitute an infringement of the copyright of the sampled works where such dealing is not covered under the exceptions of fair dealing.[18]

It is true that music sampling involves more than just the technical act of sampling and involves the ability to reimagine and reinterpret existing material in a way that adds new depth, meaning, and emotion to the new work, such as manipulating the tempo, pitch, rhythm, or texture of the sampled material, as well as layering multiple samples to create a distinct work. The process of obtaining a license from the author of the work sought to be sampled could be considered a limitation to the expression of such artistic creativity. However, the Copyright Act is clear on what is protected under copyright[19] and what fair dealing[20] on such protected works will be. Hence to achieve artistic expression in music sampling while respecting copyright laws, there is a need to create a balance, which is provided by the Act. The person seeking to sample a work belonging to another is required to obtain permission, typically in the form of a license, from the copyright owner of the sampled material before using it in their compositions.[21] This ensures that the original creators are fairly compensated for the use of their work.[22]

CONCLUSION

From the foregoing, it is clear that fair dealing is only permissible for criticism, comment, news reporting, teaching, scholarship, or research, and such other instances listed in the Act. Hence, it will be considered an infringement if sampling is done outside the scope provided for in the Act. Additionally, where sampling does not pass the test of the aforementioned factors, such use cannot be considered fair nor will fair dealing avail as an exception to sampling in that instance.  Permission must be sought and obtained to legally sample a song in your work. Sampling a song that belongs to an artist without permission constitutes an infringement of the owner’s copyright to that work, regardless of the portion that is taken. The owner of the infringed copyright has the option of commencing an infringement action before the Federal High Court[23] to seek damages, an injunction, or an account of profits against the infringing party and can also request for a takedown of such work.[24] Hence, the use of a copyrighted work in enhancing or expressing your art as a musician should and can be achieved within the confines of the law, by obtaining a license or permission from the copyright owner(s) of such work. By doing so, the balance between artistic expression and copyright protection in music sampling can be achieved thereby fostering a creative environment that respects the rights of all parties while pushing the boundaries of creativity and innovation in music.

REFERENCES

Bryant J, ‘The Defence of Fair Dealing in Nigerian Copyright Law: Tradeoffs between Owner and User – Copyright – Nigeria’ (www.mondaq.com13 November 2018) <https://www.mondaq.com/nigeria/copyright/754060/the-defence-of-fair-dealing-in-nigerian-copyright-law-tradeoffs-between-owner-and-user> accessed 23 February 2024

Claflin S, ‘HOW to GET AWAY with COPYRIGHT INFRINGEMENT: MUSIC SAMPLING as FAIR USE’ (2020) 26 Boston University Journal of Science & Technology Law. 105 <https://www.bu.edu/jostl/files/2020/04/5.-Claflin.pdf>  accessed 23 February 2024

Copyright Act, 2022.

‘How Copyright Works: Meet Music Copyright Expert Dr. E. Michael Harrington’ (www.youtube.com) <https://youtu.be/Bai6nWLK5Ms?si=FsjQlQAlu-GfD-_D> accessed 16 February 2024

Olubanwo F, Osundolire O, and Egbumoke I, ‘The Legal Implications of Sampling Music under Nigerian Law’ (Banwo & Ighodalo22 September 2022) <https://banwo-ighodalo.com/grey-matter/the-legal-implications-of-sampling-music-under-nigerian-law?utm_source=mondaq&utm_medium=syndication&utm_term=Intellectual-Property&utm_content=articleoriginal&utm_campaign=article>  accessed 21 February 2023

Ostrow MD, ‘Music Sampling Rights: What You Need to Know’ (Romano Law14 October 2022) <https://www.romanolaw.com/music-sampling-rights-what-you-need-to-know/#:~:text=Sampling%20refers%20to%20the%20act>  accessed 23 February 2024

Sound charts Team, ‘soundcharts | Market Intelligence for the Music Industry’ (sound charts.com31 December 2023) <https://soundcharts.com/blog/music-copyrights#:~:text=Two%20types%20of%20music%20copyright%3A%20master%20and%20composition> accessed 16 February 2024

St Francis School of Law, ‘Intellectual Property Rights: Definition and Examples’ (St Francis School of Law15 April 2021) <https://stfrancislaw.com/blog/intellectual-property-rights/> accessed 16 February 2024


[1]St Francis School of Law, ‘Intellectual Property Rights: Definition and Examples’ (St Francis School of Law15 April 2021) <https://stfrancislaw.com/blog/intellectual-property-rights/> accessed 23 February 2024.

[2] Section 1 of the Copyright Act, 2022.

[3] Section 2 (a)(b) of the Copyright Act, 2022.

[4] Works protected by copyright are listed in Section 2(1) of the Copyright Act of 2022 as follows: literary works; musical works; artistic works; audiovisual works; sound recordings; and broadcasts.

[5] Johnson Bryant, ‘The Defence of Fair Dealing in Nigerian Copyright Law: Tradeoffs between Owner and User – Copyright – Nigeria’ (www.mondaq.com13 November 2018) <https://www.mondaq.com/nigeria/copyright/754060/the-defence-of-fair-dealing-in-nigerian-copyright-law-tradeoffs-between-owner-and-user> accessed 23 February 2024.

[6] Ibid, Pg 1

[7] Ostrow MD, ‘Music Sampling Rights: What You Need to Know’ (Romano Law14 October 2022) <https://www.romanolaw.com/music-sampling-rights-what-you-need-to-know/#:~:text=Sampling%20refers%20to%20the%20act> accessed 23 February 2024

[8] Sam Claflin, ‘HOW to GET AWAY with COPYRIGHT INFRINGEMENT: MUSIC SAMPLING as FAIR USE’ (2020) 26 Boston University Journal of Science & Technology Law. 105 <https://www.bu.edu/jostl/files/2020/04/5.-Claflin.pdf> accessed 23 February 2024.

[9] Section 2(b)(e) of the Copyright Act, 2022.

[10] Femi Olubanwo, Olumide Osundolire, and Ifeanyi Egbumoke, ‘The Legal Implications of Sampling Music under Nigerian Law’ (Banwo & Ighodalo22 September 2022) <https://banwo-ighodalo.com/grey-matter/the-legal-implications-of-sampling-music-under-nigerian-law?utm_source=mondaq&utm_medium=syndication&utm_term=Intellectual-Property&utm_content=articleoriginal&utm_campaign=article> accessed 21 February 2023.

[11] Section 9 of the Copyright Act, 2022

[12] Ibid pg 2

[13] Ibid pg 1

[14] Section 2(2)(a-b) of the Copyrights Act, 2022

[15] Section 20(1)(d)(i-iv) of the Copyrights Act, 2022

[16] Section 20(1)(a-d) of the Copyrights Act, 2022

[17] Section 24 of the Copyrights Act, 2022

[18] Sections 36(a) of the Copyrights Act, 2022.

[19] Section 2(1) of the Copyrights Act, 2022 provides that the following are eligible for copyright protection: literary, musical, artistic, audiovisual works, sound recordings, and broadcasts.

[20] Sections 20, 21, 22, and 23 of the Copyrights Act, 2022.

[21] Section 9 of the Copyrights Act, 2022 grants an exclusive right to the author of a musical work to do and authorize the doing of the acts listed therein.

[22] Section 1(a) of the Copyrights Act, 2022.

[23] Sections 37(1) of the Copyrights Act, 2022.

[24] Sections 37(2) of the Copyrights Act, 2022.

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About Williams Umoh

William Umoh is a result -driven Legal Practitioner qualified to practice Law in Nigeria. His interest cuts across Entertainment Law, Intellectual Property Law, Data Privacy and Protection, and Regulatory Compliance. He is skilled at helping creatives protect and profit from their Intellectual Property, draft/review/negotiate and structure deals, rights acquisition and licensing, etc. He is the Convener of The Creative's Mastery Forum, a platform designed to foster problem-solving conversations and deliberations within the creative ecosystem. He can be contacted via wilmoh1@gmail.com for inquiries.