For a licensing lawyer, compulsory licensing is the solution to every problem of too much copyright. But if one is not a licensing lawyer, the solution to any problem of too much copyright is probably less copyright.

Of course we can make a bureaucracy for the redistribution of rights that get in the way of creativity. Or we can use our extremely flexible fair use defense to obliterate the problem altogether.

Perhaps the Creative Commons Sampling License is the correct solution for musicians who produce works copyrighted in systems whose law of limitations is inflexible. Here, one would think given your exploration of the over-building of "intellectual property" doctrine, it is simpler to determine that conduct valuable to expression and not harmful to anybody does not require a license because it is not within the exclusive power of the copyright holder to forbid.

The Protection of Expression: Returning Questlove’s Firstborn

-- By JulianAzran - 25 Feb 2013

Why is this a relic from a past time? Public Enemy’s “Don’t Believe the Hype” is composed of six different songs, samples that have been chopped and rearranged into a musical collage. The group did not obtain any licenses for the songs that they used, which, in 1992, was an easy feat since many in the music business thought that hip-hop was a passing fad. Today, it is financially impossible to obtain six licenses for a single song like “Don’t Believe Hype.” This technique of creative expression is now dead. How can we get it back?

Normative Goals of Copyright

The impetus of copyright law was to prevent the aristocracy from holding an indefinite monopoly over copyrightable ideas. It was initially devised as a public bargain with authors and artists; designed to incentivize the authorship and public dissemination of creative works. This rationale is reflected in the copyright clause of the Constitution, giving Congress the power to pass laws "to promote the progress of science and useful arts." Our first copyright law granted authors a fixed-term of 28 years of exclusivity to their works. However, recent revisions to our copyright laws have done away with this public bargain rationale and have instead attempted to grant authors virtually indefinite property rights to their creative output. The most recent revision gives authors who published after 1978 a copyright term of life of the author plus 70 years. This rule was designed to give the estates of dead artists the opportunity to reap the financial rewards of their decedents’ art, without any concern for public bargain.

Copyright bestows upon the public the role of picking artistic winners. Suppliers receive revenues only when they are able to persuade consumers to spend their money on a good or service. Yet, copyright represents government intervention rather than laissez-faire. The system of property rights in the reproducible arts is based on government fiat, a limited grant of rights. While the basic idea of copyright may be rooted in natural law, the practical application of copyright law is utilitarian and morally arbitrary. Therefore any argument that modern copyright laws merely bestow upon the author what is naturally his or hers is fundamentally false.

Emergence of "Intellectual Property"

The movement towards categorizing copyrights, trademarks, and patents under the umbrella term “intellectual property” only began in 1967, when the World Intellectual Property Organization was formed. Using this term inescapably implies that copyrights patents and trademarks are, by analogy, physical property and should be treated as such. In fact, these laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues. Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas. The artificial association of these two grants has led legislators to tailor laws in various ways that treat them as physical property.

Effects of Copyright Expansionism

The Roots’ drummer and producer, Questlove, posted this comment in December 2000 (Link no longer active). He explains that the part of the reason why The Roots became a band that played live instruments was due to the exorbitant fees that copyright owners were charging for sample clearances. In addition, those in control of a song’s copyright are usually neither the song’s performer nor somebody with any direct involvement in the writing or recording processes. These two issues have together led to a virtual monopoly over the copyrights of much of the music that Hip-Hop artists tend to sample, thus many artists are unable to fully realize their true artistic visions.

Acquiring a license to sample a song requires negotiating with the copyright holders. Some artists are famously unwilling to let their songs be used by others. However the Beatles are powerless to prevent another from recording a cover of any of their songs. When a cover is made, the new recording artist pays a standard royalty, fixed by statute, to the original author/copyright holder through a clearance organization to require a compulsory license.

Solutions

Instead of an ad-hoc negotiating regime, where each copyright holder maintains a monopoly over his or her catalog of songs, a sampling clearinghouse could charge a few cents for each song/album it reviews. Rules would be devised to adjust the license fee based on how much of the original song is being sampled, how prevalent it is in the new recording, whether the original song has been altered etc. Artists would prefer to use samples administered by the clearinghouse, since these samples would not require legal haggling and fees. Labels and publishers would be encouraged to have their licenses administered by the clearinghouse, in order to collect fees and reduce transaction costs. It could be administered by a combination of artists, copyright lawyers, and representatives from the RIAA, ASCAP, BMI, SESAC, and the National Academy of Songwriters. This system would allow musicians to experiment and capitalize on their uncompromised artistic visions, while also being lucrative for copyright holders. Lower licensing fees will be result in more sampling and more licenses being granted.

Such a clearance house would not be unprecedented. Since 1978, The Copyright Clearance Center has overseen the licensing of photocopy reproduction rights. It manages the rights for almost 2 million print works and represents thousands of publishers and writers. It handles over 1 million licensing transactions each year while operating as a non-profit, by taking a small percentage of the revenues it collects.

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