Digital audio sampling—a music production technique whereby sound-clips are extracted from songs and incorporated into new tracks via computer software—is a staple of hip-hop music. With the increased accessibility of Canadian music via apps like Spotify, coupled with the growing Canadian hip-hop music scene, there is great potential for the usage of Canadian musical samples in Canadian hip-hop.
Canadian artists considering using Canadian samples, however, cannot do so without considerable legal risk. Although users who create works based on copyright protected content [1] must obtain a licence [2] from the copyright holder to commercially reproduce their work, obtaining licences is expensive[3]. As a result, artists often incorporate unlicensed samples into their tracks, creating potential liability for copyright infringement.[4] With no judicial precedents dealing with the sampling of Canadian music, artists cannot be certain if the unlicensed usage of a particular sample is “fair” and is thus legally permissible.
In Théberge v Galerie d'Art du Petit Champlain (2002), the SCC stated the Copyright Act represents a balance between “obtaining a just reward for the creator” and promoting users’ rights. As is, however, no ideal compromise for Canadian hip-hop musicians has been realized.
Consider the fair dealing exception to copyright infringement under s.29. Unlike fair use in the U.S.—which permits unlimited types of use within the boundaries of the defence—fair dealing restricts allowable usages to statutory categories like satire and research. The main advantage of fair use over fair dealing is, under fair use, unlicensed samples need not to fit into any specific “category” of use to avoid liability for copyright infringement. In contrast, if the reproduction of a sample in a song cannot be grouped under any of the enumerated categories under fair dealing, the exception cannot be taken advantage of.
Recently, the fair dealing exception has been expanded. In CCH Canadian Ltd. v Law Society of Upper Canada (2003) the SCC articulated a liberal fair dealing test to support “users’ rights.” In June 2012, Parliament passed Bill-C11 which amended the Copyright Act with changes to protect users’ rights, including the additions of parody, education, and satire to fair dealing. However, as Prof. Carys Craig observes, parody, satire and education are already “readily assumable” under the pre-existing categories of research and criticism.[5] In reality, the above legislative and judicial changes have done little to improve the rights of hip-hop musicians.
Some have argued the flexibility of the fair use defence has resulted in unpredictable, case-by-case judicial outcomes. [6] While it is true the open-ended nature of the U.S. fair use test presents challenges in terms of predicting whether one is likely to succeed on it, it does not follow that Canadians should accept fair dealing’s restrictiveness. As Prof. Craig has argued, Canada’s fair dealing categories should instead be examples of uses, allowing Canada to retain the second part of the liberal CCH test, wherein multiple factors are considered in determining whether a dealing is fair, while removing the requirement that the dealing meet one of the statutory categories of use.[7]
Another obstacle preventing the legal recognition of Canadian sample-based music is whether sample-based hip-hop meets the originality threshold for copyright protection under s. 5(1) of the Copyright Act. Specifically, the originality issues for Canadian hip-hop revolve around the legal status of unauthorized derivative works (UDWs).
Although there is no provision in the Canadian Copyright Act describing “derivative works,” copyright holders nonetheless have the sole right to authorize adaptations of their work.[8] As Prof. David Vaver notes, unlike in the U.S., there is no provision in Canadian copyright law prohibiting UDWs from obtaining copyright protection.[9] Any UDW in Canada can be understood as “original” if it considered an independent creation, and displays a minimal degree of skill and judgment under the CCH originality test. However, this finding does not prohibit copyright holders from filing copyright infringement claims against authors of UDWs, indicating the need for judicial commentary to delineate the rights creators of original, downstream artistic content are entitled to. [10]
One might ask, if some hip-hop artists do not obtain licences for the samples they use, why should they be entitled to exclusive rights to reproduce their work? I would suggest all artists at least deserve protection from having the entirety of their work stolen. For example, in 2012, American producer Lord Finesse filed a lawsuit against American rapper Mac Miller for his track, “Kool Aid & Frozen Pizza,” which featured Miller rapping over Finesse’s beat without permission. While copyright should not grant creators exclusive rights over adaptations of their work, every author is entitled to enforce their copyright ownership against those who would create direct copies of their work for commercial profit.
There is a delicate balance to be achieved between the rights of individuals to protect and profit from their creations, and the rights of Canadians to utilize copyrighted cultural products to exress themselves. Striking this balance may start with the removal of the enumerated exceptions under fair dealing, and legislatively adjusting our originality standard so that UDWs are clearly included within its ambit. More importantly, encouraging hip-hop artists in Canada to use Canadian samples necessitates a collective cultural and legislative recognition of the dialogic interaction between appropriation art and the works that inspire it.
Elias Rabinovitch is an IPilogue editor and JD Candidate at Osgoode Hall Law School.
[1] Copyright Act, RSC 1985, c C-42, s 3 [Copyright Act]
[2] Copyright Act, s 2.7
[3] Kembrew McLeod & Peter Dicola, Creative License: The Law and Culture of Digital Sampling (Durham and London: Duke University Press, 2011) at 165.
[4] McLeod & Dicola, supra note 1 at 77.
[5] Carys Craig, Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law (Cheltenham, UK: Edward Elgar, 2011) 178.
[6] Barry Sookman & Dan Glover, “Why Canada Should Not Adopt Fair Use: A Joint Submission to the Copyright Consultations” (2009) 2:2 Osgoode Hall Review of Law and Policy 139 at 151-52.
[7] Craig, supra note 5 at 179.
[8] Copyright Act, supra note 1, s 3.
[9] David Vaver, “Canada’s Intellectual Property Framework: A Comparative Overview” (2004) 17 IPJ 125 at 138.
[10] Ibid.