A Remix Compulsory Licensing Regime for Music Mashups

Abstract

Spurred by advances in digital technologies, music mash-ups emerged as a defining musical genre in the early twenty-first century, reshaping content industries and the broader culture. Digital technology and file-sharing platforms enabled creators to reach vast audiences without the high share of proceeds demanded by traditional record labels, publishers, and distributors. Creators seeking to earn a living in the creative arts faced new challenges in this environment. The very technologies that liberated them from the shackles of the old intermediaries made it ever more difficult to achieve an adequate return on their investments in training, time, expense, and opportunity cost to produce art. Aggressive copyright enforcement, which was rarely a problem in the pre-internet age, took center stage in the twenty-first century, especially for independent creators. A just, effective, and forward-looking copyright system would channel internet-age creators and consumers into well-functioning digital-content marketplaces. Such a system must come to grips with the reality that a growing segment of the population does not view traditional markets for copyrighted works as the only means to access creative works. To many, participation in markets for copyrighted works is voluntary; it is more about convenience and fairness than compliance with the rule of law. Thus, trends in technology, social dynamics, and moral conscience have eroded copyright protection. Heavy-handed responses by copyright owners — such as mass litigation campaigns threatening outsize statutory damages, efforts to ramp up enforcement tools, and troll litigation — have alienated consumers, judges, and legislators and spurred work-arounds that lead new generations away from authorized digital content marketplaces and copyright-based creative careers. Notwithstanding the decline of the copyright system’s public approval rating, the core social, economic, and moral foundations on which copyright was built have not been rendered obsolete by technological advance. To a large extent, what many creators want and need has remained the same: freedom to create and fair compensation based on the popularity of their art. What many consumers want has also largely remained the same: easy access to creative original art at a fair price. These two forces create the conditions for copyright to provide a critical engine of creative and free expression in the digital age. For the copyright system to remain vital, copyright reform must channel post-Napster creators and consumers into a balanced marketplace, not alienate them. This essay explores why and how to transition the copyright system to the internet age through the lens of music mash-ups, a salient art form that has a particular cultural and social significance.