Title: Reformulating the 'fair dealing' defence in copyright law to accommodate transformative musical works and maximise creativity in Australia

Authors: Bodhi Dharmatilake

Addresses: Macquarie University Law School, Macquarie University, Building W3A, New South Wales 2109, Australia

Abstract: This paper aims to examine the effectiveness of Australian copyright law in fostering the development of music works that derive from digital sampling or remixing - known throughout the paper as 'transformative musical works'. The paper will begin with scene-setting - providing an insight into the world of digital musical sampling and the production of transformative work. Having set the scene, this paper will analyse various theoretical justifications underpinning copyright law, and use them to determine the effectiveness of Australian copyright law. Ultimately, this paper aims to provide an observation of the current law from a utilitarian standpoint, and propose possible reforms that adhere to the established principles, derived from the study of legal theory. In brief, the paper aims to assess how effectively Australian copyright law fosters and develops musical creativity, in light of the increasing incidence of transformative musical works and how the law can be modified to improve its effectiveness.

Keywords: transformative musical works; digital music sampling; copyright law; digital technology; remixing; musicians; music licensing; legal theory; utilitarian perspective; intellectual property law; Australia; fair dealing defence; creativity.

DOI: 10.1504/IJTPL.2015.067958

International Journal of Technology Policy and Law, 2015 Vol.2 No.1, pp.1 - 26

Published online: 12 Mar 2015 *