As we start working on the details involved in the launch the sampling license over at Creative Commons, we find, as always, that God is in the details. The idea behind the sampling license is that many artists don't mind if their music is sampled by other artists as long as there is attribution. The Creative Commons is currently proposing two sampling licenses. The normal sampling license which allows other artists to transform the work even for commercial use, while prohibiting distribution of verbatim copies of the entire work. The Sampling-Plus license offers the same rights but allows verbatim sharing of the entire work for non-commercial purposes.

This license would help those genres of music that rely heavily on sampling which have been getting a beating recently by record company lawyers.

It starts to get a bit sticky when one begins to explore some of the extremes of what are called "moral rights". In the article 6bis of the Berne Convention, the "moral rights" of authors includes the "right of integrety: mutilation or distortion that would prejudice the author's honor or reputation is not permitted." These rights are not protected under US Copyright Law but many countries elsewhere protect this. The question is, when does a remix "prejudice the author's honor or reputation" and do the Creative Commons licenses allow people to use the works in ways that "prejudice the author's honor or reputation".

This is where The Kuleshov Effect comes in. danah boyd blogged about it today. The Kuleshov Effect is when an image is perceived very differently depending on what other content is juxtaposed with the image. The question that danah raises is, how much control should / can an artist have of the context in which their material is used? How much of this should be made explicit in the Creative Commons licenses and should there be a waiver of these "moral rights" in countries outside the US where such rights are actually protected.

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Tough one. My understanding of 'moral rights' regimes is that an artist can't really waive it, in the way he or she might waive the right to a royalty, say. It is a right in the same order as your right to live, or your right to quit your job. You can't contract it away.

That said, I think there is a way of ring-fencing the right to some extent. I think it's fair to say that if you deliberately use another person's material to defame or to mock that person, then that's not on. However, if you use it to criticise the ideas and the work, that's fair enough.

If you followed this approach (and you could get courts and authors to follow it too, obviously) then the Kuleshov effect would be irrelevant. Only if the material was used in a deliberately mocking or defaming context would the moral rights be infringed.

Something that surprises me a great deal is the number of people linking to my images or files without crediting me, even though every page says "images free to use, but please credit me." It's frustrating, but I've taken to replacing images for people who link without credit. More than one ebayer using my stuff has had some less than polite comments suddenly appear in the middle of their auction.

Of course it's irrelevant to a discussion on music sampling, but ... People suck, and rules won't change them no matter how reasonable they are.

Creative Commons first considered offering a Sampling License at the suggestion of collagist People Like Us (a.k.a. Vicki Bennett) and Negativland, the appropriationist art collective that has since served as the public discussion lead during the drafting process!

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Joi Ito recently wrote about the conflicts that might arise between the future Creative Commons sampling licenses and so called 'moral rights'. The idea is that, when remixing a work released under such a sampling license, one might infringe upon... Read More

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