Sampling the 'soul of music' in a post-Pelham world:An interdisciplinary perspective

Sampling may be defined as taking a segment of a copyright-protected sound or a sound recording and employing it, in order to make a new composition. Defining a theory of music, in other words what merits protection, is germane to appreciating use of which parts of the sound therein may actually constitute sampling. In the purist European tradition, melody poses at the heart of music. Considering the limited permutations and combinations in which notes and chords may be combined to create melodies, composers, in practice, increasingly experiment with different aspects of music to create new compositions. While the current approach in the field of copyright and related rights may be befittingly responsive to ‘classical music’, woes of popular music remain under-addressed. A restrictive approach may also negatively impact downstream innovation and creativity in the marketplace for music. In other words, how music plays to the tunes of copyright and related rights impacts competition in the market for creativity. While it may be true that to further the objective of creativity, copyright must afford a high degree of protection to the rightholders, following the remarkable decision in Pelham, it is a befitting moment to rethink and reconsider the conditions in which this higher degree of protection limits follow-on innovation and creativity in the emerging genres of popular music. Against this background, this chapter looks for balancing of the rights of the rightholder and samplers and makes normative recommendations to balance the rightholder and user interests