The growing proliferation of fair use “best practices” guides and the growing tendency of judges to accept “transformative use” as the touchstone for fair use analysis will be helpful in this regard.

While of course some artists would prefer to clear samples and not risk legal liability (something that the Beasties in fact actually did with the samples on Paul’s Boutique, for the most part), I would argue that the samples on Paul’s Boutique are clearly used for a different underlying purpose (i.e. postmodern pastiche/collage rather than the purposes of the underlying works sampled). (This is of course an ideal example of “transformativeness” – things are much murkier when an artist uses the “heart” of a prior work as the entire underlying portion of a song with no intent to parody, comment, critique, etc., instead merely freeriding on the creative work of another).

As for the duration of copyright, yes, life of the last surviving author plus 70 years is appropriate given that the Copyright Act provision on termination of transfer is finally coming into effect the original authors (or their heirs) will finally have the opportunity to get their copyrights back and completely benefit from them.

As for licensing samples the article also is misleading in that what is in a sample can be reproduced provided statutory royalties are paid. No, it is not taking from the source, but that’s the point. If the work is original the Copyright Act provides that for sound recordings the creator need not secure a mechanical license from the owner of the musical composition, but can instead secure a compulsory license provided the composition has previously been distributed to the public for a private use (a so-called “first use”).

People who use someone else’s works to create something “new” should secure the appropriate rights to do so. While I am not opposed to a more convenient method to license copyright -protected works, your approach is throwing the baby out with the bathwater.

The common approach by creative folks (and I am one and have worked with them for over 35 years) is to do everything backwards. They most often create, release and then seek a license. If they approached the process professionally most of the time the problems you mention would not exist.

Yes, the creators of works do not, and should not, have sole authority about how their works are used once those works have been published. That’s part of the bargain we make in copyright- there are exemptions to copyright for societal benefit, with the ultimate destination of the public domain. That’s not to say that people can do absolutely anything they want with the work- there are certainly uses that are wrong and unfair.

The act of creation often involves use or inspiration from other existing work. To pretend that there’s no creativity in copying is akin to saying that there’s no creativity in photography. There can be a great deal of creativity in each. Was Paul’s Boutique or Licensed to Ill uncreative because of sampling? No.