Is using sample-based instruments incompatible with Creative Commons licenses?

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by LAM »

I really didn't want to take part at this discussion as I already expressed my thoughts about all this debate about samples, licensing, unfa and Carl Irwin's videos, etc. in the unfa's rocketchat. It's an interesting topic, nonetheless, and it's important to grasp as much as we can.

For the moment I just want to point out a thing about incidental inclusion.

I'm not an English native speaker nor a UK citizen, however the word incidental seems connected to a random or casual event. I really doubt you can deliberately use something in your work and then say it was incidental.

The incidental inclusion of copyrighted work, despite not being 100% clear, has reached a more or less agreed meaning in the copyright realm.

For example, UK Channel 4's Producers Handbook has a little chapter dedicated to the incidental inclusion: https://www.channel4.com/producers-hand ... -inclusion

To cite the most relevant part:

Note: in the case of musical works specifically, if the work has been deliberately included, then the Act states that inclusion of the work should not be regarded as incidental.

Ref: https://www.legislation.gov.uk/ukpga/1988/48/section/31

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by LAM »

For the sake of this discussion we should clear what a sample (in the context of a sample library) is, if it's a copyrightable work (sufficient amount of authorship to warrant a copyright protection) or not.

There are different point of views about this, so we end up with two main possibilities:

  1. Samples that are not copyrightable: No matter what we do, they don't fall under copyright. They could be subject to other agreements between parties, but not protected by "default".

  2. Sample that are copyrightable: They are protected by copyright and rights can be relinquished, if possible in that applicable jurisdiction, with CC or other licenses.

Now, for the case 1, if they are not under copyright or a contract I wonder why we should find exceptions, exemptions, etc. in the copyright laws, or even talk about this subject.

For case number 2, given instrument samples are not considered "musical works" but "other works" or "sound recording", still remains the case of

Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film (F1or broadcast).

as cited in the reference above (Copyright, Designs and Patents Act 1988 Part I Chapter III General Section 31), continuing taking the UK law as example.

If incidental inclusion is not possible when deliberately including a "(copyrightable) work" we can quite likely exclude the possibility for this defence.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by Impostor »

LAM wrote: Fri Dec 09, 2022 1:40 pm

To cite the most relevant part:

Note: in the case of musical works specifically, if the work has been deliberately included, then the Act states that inclusion of the work should not be regarded as incidental.

Well yeah, deliberate being an antonym of incidental, that seems rather obvious, not? But maybe not for lawyers and judges..

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by Impostor »

LAM wrote: Fri Dec 09, 2022 4:48 pm
  1. Samples that are not copyrightable: No matter what we do, they don't fall under copyright. They could be subject to other agreements between parties, but not protected by "default".

  2. Sample that are copyrightable: They are protected by copyright and rights can be relinquished, if possible in that applicable jurisdiction, with CC or other licenses.

I wonder how the law makes the distinction between a copyrightable sample and one which isn't. Seems to me there's a sonic continuum from a single noise to a musical work.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by LAM »

Impostor wrote: Tue Dec 13, 2022 6:49 pm
LAM wrote: Fri Dec 09, 2022 1:40 pm

To cite the most relevant part:

Note: in the case of musical works specifically, if the work has been deliberately included, then the Act states that inclusion of the work should not be regarded as incidental.

Well yeah, deliberate being an antonym of incidental, that seems rather obvious, not? But maybe not for lawyers and judges..

Not sure what you mean.

I wonder why UK law needed to set this specific case (3) when at point (1) it was already quite clear. You know, sometimes some laws are "suggested".

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by LAM »

Impostor wrote: Tue Dec 13, 2022 6:58 pm
LAM wrote: Fri Dec 09, 2022 4:48 pm
  1. Samples that are not copyrightable: No matter what we do, they don't fall under copyright. They could be subject to other agreements between parties, but not protected by "default".

  2. Sample that are copyrightable: They are protected by copyright and rights can be relinquished, if possible in that applicable jurisdiction, with CC or other licenses.

I wonder how the law makes the distinction between a copyrightable sample and one which isn't. Seems to me there's a sonic continuum from a single noise to a musical work.

"Originality", "Authorship", "Fixed Medium" are usually the decisive elements for determining if some work is copyrightable.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by LAM »

Regarding sample libraries, there is a school of thought that considers them a copyrightable "work" (with the 3 before mentioned requisites).

The copyright should cover them, as single sounds and as compilation. So they are protected in the case, let's say, somebody is using/sampling/selling the sample library content, be it a single sample or the library as a whole, without permission.

What got my interest in this "thought" is that they are "works" but as soon you use them to create something different, like a musical piece, the copyright of those works isn't "effective anymore". Mainly for those reasons:

  1. They are used following their intended use. One reinforcing argument is that commercial sample libraries don't claim any rights on the music made with them because they can not/don't want.

  2. Their use is transformative, so they fall under a "fair use" or other exception

  3. The totality of the copyright litigations are about "sampling" of existing musical works, be it shorter or longer portions of them, and no litigation about use of sample libraries exists until now

1) Seems quite reasonable, however is unclear to me why a "work" should be less protected compared to another "work", regardless of it's "intended use". And that brings me to the points that @nils wisely mentioned before in this topic. The definition of a "derivative" work should be investigated more in this regard.

2) Fair Use exceptions, like transformative use is a good argument that unluckily is not valid everywhere in the common law systems, let alone civil laws systems. Incidental use is another argument, but I see it like a quite weak one, as I tried to explain in earlier posts.

3) The fact there are no records of lawsuits about sample libraries could make us sleep comfortably. As soon we use longer samples or loops, however, in the age of AI and ContentID, we are seeing how regardless of copyright, there are "practical" systems that could hinder our capability to publish our music. If our music happens to contain a, even completely legal, sample, and we were unlucky enough to have somebody publishing a track using that same sample before us, we could be screwed (for ex. see Splice/ContentID cases). :D

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