November 2, 2008 by Moa Bergsten
The DJ Girl Talk has won media attention for his new album “Feed the animals”. Besides positive reviews, Girl Talk has been put at the forefront of a phenomenon that challenged traditional restrictions in copyright law since his new album constitutes 300 clips from other artist’s songs. Pursuant to the Canadian Copyright Act, the owner of a work has the sole right to reproduce the work or any other substantial part thereof. Substantiality is about impression and essence and to me there is no doubt that Girl Talk uses the essence in numerous songs he copies, even though each song is only sampled for a very limited time.
In the light of the above, a user can make a defense to his substantial use of a copyrighted work under the doctrine of fair dealing (US fair use). In 2004, as a result of the CCH case, the Supreme Court of Canada determined that fair dealing (alongside the other exceptions) must be given a large and liberal interpretation. How can the CCH case be applied to put Girl Talk’s work under the fair dealing exception? Firstly, Girl Talk must, to make out a defense, fit the action under an enumerated ground. The Supreme Court opined in the CCH case for new purposes to be included under enumerated grounds (and with that aligned itself with the more flexible US approach) and hence, a tendency to collapse the first part of the analysis with the second part that assess fairness was shown. To determine fairness, the court can consider custom or practice of a certain industry. This factor may be the key to Girl Talk’s defense. I’ve asked myself if the music business supports rigid regulation. The DJs is a part of the industry as well and I do not doubt that even if Girl Talk’s album competes with the market of the original works, it also generates more listeners, and thereby profits to the artists of the original works. The music business already does, and must continue to, adapt to new developments, influences, demands and expectations. New technical features nowadays often lead the way for in which direction the expectations from the public will go. The same holds for the industries’ own artistic efforts and methods to create. Today, a large number of DJs hold the same position and respect as a singsong writer, the lead singer of a rock band or the creator of a new song. DJs perform in large venues, at rock festivals as well as produce their own music and release it on albums or EPs. The creators put great mental effort, time and individual creativity into their work.
I see great difficulties in determining where the balance between a right holder and a user could be drawn. Self-regulation by the industry, whereas the creativity should be the focus, may in this case be preferable and a liberal starting point for the use of right holders work creates great opportunities for innovation, creativity and growth in all areas.