저작권법상 음악저작물의 샘플링에 관한 소고

Abstract

This article examines legal disputes relevant to sampling in copyright law. As digital technology converges with music industries, music sampling has become increased and popularized in the music world. Accordingly, it is necessary to establish a proper legal regulation. Music sampling is the subject of legal disputes. Because music sampling is sort of derivative works which use a copyrighted materials, it may involve copyright infringement. But it also implies the introduction and distribution of new works in the music market. From the traditional perspective, it could be said that music copyright as a property must be protected in any events. However, it should not be ignored that real values of copyright works are maximized only when they are enjoyed by many people. As to an artistic creative work like music, especially, its modification is inevitable because it fundamentally relies on human creative instinct. Also, such creative modification trigger development of cultural art. When understood this way, legal disputes of music sampling need to be treated in the aspect of music and entertainment industries development, rather than copyright protection. However, a two-track approach to derivative works is too vulnerable to properly regulate music sampling. Rather, it results in moral hazard like ‘license-after-infringement.’ Thus, it is significant to find the extent to which music sampling contributes to the development of music industries and cultural arts by distributing various creative works without being infringed on copyrights. In doing so, it needs a variety of factors determining the extent to which music sampling is allowed, considering competitive effects and the potential market for music sampling.