Why A Compulsory License for Digital Samples of Sound Recordings Is A Bad Idea
“The Framers of the Constitution were excellent social psychologists.” Their premier foresight was about the balance of power, the establishing of checks and balances, so that democracy could prevail and a monarchy could never take hold. Embedded within this premier foresight was the Framers’ understanding that “democratic communities are subject to ‘the turbulence and weakness of unruly passions,’ and that society needed to be protected from itself. So the Framers built mechanisms into the Constitution “to slow things down, cool passions, require compromise,”1 recognize practical sense, and protect the right of the public against the tyranny of its leaders. This is why the Framers of the Constitution made it difficult to amend or change the Constitution. They intended for the process to be complicated so that only changes that were essential to the advancement of society and the protection of the public could be made to the Constitution. United States copyright law was constructed with this same foresight. It was built with mechanisms that are meant to advance society and place the interests of the public above the rights of copyright owners. Any amendment to the Constitution that can disrupt these mechanisms must be considered carefully on the grounds of whether it does or does not serve the objectives of copyright law.
A compulsory license for cover songs is not the same thing as a proposed compulsory license for digital samples. A cover song is definite, it has a clear beginning and end, and it’s absolute as a product. There’s a set fee to record a version of an entire song, to remake a pre-existing song in one’s own vision, while preserving the basic character of the primary song (lyrics, main melody, etc.) in the secondary work. A digital sample of a sound recording, by contrast, is not absolute; there’s an infinite number of possibilities involved with the use of a sample. Sampling (borrowing) pieces of a song or any sound recording is not the same thing as doing a cover version of a song. Congress well understood the difference between covering (copying) an entire sound recording (song) and borrowing pieces from a sound recording. Congress didn’t make a compulsory license for samples — small takings — of sound recordings when it added sound recordings to the list of copyrightable subject matter in 1971. The point being that there are no compulsory licenses for small (insubstantial) takings of any copyrightable subject matter.
With the Copyright Act of 1976, Congress could have added a compulsory license for all takings that did not constitute a full song (ergo samples of any size). But Congress didn’t do that. Instead, Congress codified fair use in the Copyright Act and made it clear that fair use applies to all copyrightable subject matter, including sound recordings. In other words, Congress made it clear that sound recordings are subject to the same rules and limitations of copyright law as all other copyrightable subject matter. Which means that, as with all other copyrightable subject matter, a copyright owner’s exclusive right in sound recordings is not absolute; there are indeed instances in which borrowing from copyrighted sound recordings, without permission of the copyright owner, are permitted. A compulsory license for digital samples of sound recordings would undermine this specific permission that copyright law grants to the public.
More significantly, a compulsory license for digital samples of sound recordings would severely disrupt the objectives of copyright law. First, it would expand the rights of copyright owners of sound recordings. Second, and more troubling, it would lead to similar changes to the other copyrightable subject matter. Once you imagine a world in which a compulsory license for “samples” of literary works exist — a world wherein the public must pay a statutory rate to borrow even one word from a literary work — you quickly recognize how ridiculous and harmful it would be to amend the Copyright Act to include a compulsory license just for the digital samples of sound recordings. Such an amendment, which would claw back the protections that fair use and de minimis provide for permissive borrowing, would throw the system of copyright law completely out of whack and end permissive borrowing as we know it.
Beyond the major chaos that a compulsory license for digital samples of sound recordings would create, there are several other reasons why a compulsory license for digital samples of sound recordings is not the answer to the problem. First, such a compulsory license suggests that all samples should be cleared simply because they could be cleared. One could pay a licensing fee to use the headline from a newspaper in a documentary film, but that’s not a requirement because such use is fair use. Imagine commentators arguing that there should be a compulsory license for borrowing excerpts from newspaper articles. It’s neither practical nor necessary. Like a complete song, an article is an absolute, so newspapers and magazines have the sole discretion to set their licensing rates for full republication of their articles. But they cannot set rates for every element — every possible “sample” — of their articles. Every individual sentence, word, letter, or marking within each article is not protected by copyright law, and it would be absurd to attempt to create licensing fees for every individual element. See where this is going? While you can set a compulsory license to do a cover version of a complete song, you can’t possibly set a compulsory license for every single sound embodied in a song or other sound recording.
Next, a compulsory license for digital samples of sound recordings would rely inherently on an ad-hoc, unfair method for determining the types of digital samples (borrowings) and corresponding durations. This does not benefit the public, and it’s the sort of thing that the Constitution protects the public from. Finally, a compulsory license for digital samples of sound recordings would mostly benefit the bureaucracy that would have to be created to administer such a license. Following the bureaucracy, in order of who would benefit, would be the major labels and music publishers, followed by recording artists. Sample-based musicians, who essentially reflect the public and who create new works and contribute to the advancement of society via these works, would be the last beneficiaries. In this paradigm, the critical thing to remember is that the purpose of copyright is to advance society, and this purpose places the interest of the public above all. Hence, any change to the Copyright Act that harms the interests of the public will harm the interests of society and undermine the objectives of copyright law.
Again, we must remember that, while copyright law grants an exclusive monopoly to the owner of a copyrighted work, that monopoly is limited. So on one hand, copyright law promotes the advancement of society by encouraging people to create things, which yields new knowledge. On the other hand, copyright law ensures the advancement of society by making copyrighted works, in certain circumstances, accessible to the public free of charge and without any need of permission from the copyright owner. Some commentators argue that one aim of a compulsory license for digital samples of sound recordings is to bring certainty to the issue. The idea being that, while de minimis and fair use exist, there’s no certainty as to when a sample is or isn’t de minimis or fair use.
But the absence of bright lines for what is or isn’t de minimis or fair use is intentional; it’s one of the mechanisms purposely built into copyright law to advance society and protect the interests of the public. There’s no “certainty” when an author borrows lines from a book, there’s no bright line for determining if an author’s appropriation of a literary work is de minimis or fair use. Yet no one argues for a compulsory licenses for “samples” of literary works. This is because using a compulsory licensed scheme that’s designed for the certainty of using a full work — like covering an entire song — for the uncertainty (unpredictable nature) of borrowing pieces (elements) of a copyrighted work, is illogical and counterintuitive.
Finally, do we really want Congress tampering with the most critical built-in mechanisms that protect the public’s right to permissive borrowing? What happens when Congress recognizes that, in order to maintain parity among all eight categories of copyrightable subject matter, it can’t stop at creating a compulsory license just for digital samples of sound recordings? What happens when Congress turns its sights on making a compulsory license for borrowing (“sampling”) from literary works, books in particular, which have served as source material far longer than song recordings have? If we’re to understand that making a compulsory license for borrowing from books and other literary works is impractical, we should then understand that it’s also impractical to create a compulsory license for sound recordings or any other copyrightable subject matter.
Notes:
1. Jonathan Haidt, “Why The Past 10 Years Of American Life Have Been Uniquely Stupid,” The Atlantic, May 2022 Issue https://www.theatlantic.com/magazine/archive/2022/05/social-media-democracy-trust-babel/629369/.
