Anca Buta Mușat¹

Abstract
This article is a foray into the EU and US long attempt to balance two polarizing issues: copyright protection and artistic freedom as part of the fundamental right of freedom of speech. It first reviews generally how sampling became so important nowadays and it then digs into the murky case-law of the European courts, the Court of Justice of the European Union and the courts of the United States, respectively. Among all the above, it is the US jurisprudence that has the longest history, and time conferred the courts the chance to formulate and polish the concepts underlying this topic, such as the limits of copyrights and derivative works, de minimis test for non-infringing use, and, the most important, the fair use doctrine and transformative paradigm. After a close look to various approaches, it becomes obvious that the fair use doctrine accommodates best this new reality of new musical works built on existing records and, being a case-law concept, it has the prerequisite to keep pace with the technological development. Hence, this article naturally gets to the point where some de lege ferenda proposals are identified for the E.U legislators that would give the member states more room to strike a fair
balance between copyright protection and artistic freedom in the music industry.

¹ Anca Buta Mușat este avocat în cadrul Baroului București, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..