13 August, 2019

Just a Little Taste - The CJEU Decides on Whether Music Sampling Infringes Copyright

Having discussed the recent opinion by Advocate General Szpunar in relation to copyright and sampling, the CJEU's decision has been very hotly anticipated, particularly by the music industry. Sampling has become incredibly common in the creation and production of music, and so the potential curtailing of sampling by the CJEU could pose a big problem to artists, producers and labels. Luckily (or unluckily) the CJEU has finally handed down its judgment very recently.

As a short primer, the case of Pelham GmbH v Ralf Hütter and Florian Schneider‑Esleben concerned the song "Metall auf Metall" created by the band Kraftwerk, which comprises of the respondents Hütter and Schneider‑Esleben. The song was sampled in another song called "Nur Mir", which was produced by Pelham in the late 1990s. Kraftwerk allege that Pelham sampled a two-second rhythm sequence from their song, and used it as a continuous loop in "Nur Mir", therefore infringing their copyright. Pelham contested the infringement allegation, and the case then ended up in the CJEU some years later.

The referring court asked the CJEU six questions, which the Court dealt with (mainly) in turn.

The first and sixth questions were dealt with by the CJEU together, which essentially asked "...whether Article 2(c) of Directive 2001/29 must, in the light of the Charter [of Fundamental Rights of the European Union], be interpreted as meaning that the exclusive right granted to a phonogram producer to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram".

The Court opened with setting the scene, in that the copying of a sound sample, even if very short, must be regarded as a reproduction ‘in part’ of that phonogram within the meaning of the Article. Even so, if a user is exercising their freedom of the arts to create a new, distinguishable phonogram work, that particular use wouldn't be classed as a 'reproduction' under the Article. The Court noted that a balance has to be struck between the rights afforded by copyright, and the rights under the Charter.

Having considered the questions, the Court determined that "…Article 2(c)… must, in the light of the Charter, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him or her to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear". In short, an artist would have to utilize a short clip of music in more ways than simply copying it in and the work has to be unrecognizable when compared to the original.

The Court then moved onto the second question, which asked "…whether Article 9(1)(b) of Directive 2006/115 must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram constitutes a ‘copy’, within the meaning of that provision, of that phonogram". The Article affords the owner of the rights in a phonogram the right to distribute copies of the work.

Having discussed the legislative backdrop of the provision quite extensively, the Court considered that samples transferred from another phonogram would be a 'copy' under the provision, as they are a 'duplicate' of the part of the work, since the samples contain sounds taken directly or indirectly from a phonogram.

The Court then considered the third question, which asked "…whether a Member State may, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of Directive 2001/29" – or in other words, can additional exceptions be provided to the rights afforded to rightsholders in relation to phonograms.

The matter yet again circled around the balancing of interests in terms of the rights in works, and exceptions to those rights allowing for the use of works in specific circumstances (so long as it doesn't conflict with the normal exploitation of a work). The Court answered the question in the negative, considering that Member States cannot lay down additional exceptions outside of Article 5.

The fourth question concerned "…whether Article 5(3)(d) of [Directive 2001/29] must be interpreted as meaning that the concept of ‘quotations'… extends to a situation in which it is not possible to identify the work concerned by the quotation in question".

The Court first focussed on the requirements for quotation, which has to be made "in accordance with fair practice, and to the extent required by the specific purpose", meaning you can't simply copy a work and claim it as a quotation of that work if it exceeds the requirements and purpose of a given quotation. Also, the Court noted that the meaning of 'quotation' is the use of a copyright protected work to "….illustrat[e] an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user", which is typically done through a 'dialogue' with that work.

A key consideration on quotation is that the work needs to be identifiable, which, in sampling, might not be as easy. Without the identification of the sample, it isn't strictly possible to have a 'dialogue' with the work as a part of the quotation. The Court therefore set out that "…the concept of ‘quotations’… does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question". It is a case-by-case question, in terms of sampling, when the copying can be considered as a quotation within the provision.

Finally, the Court dealt with the fifth question, which concerned "…whether Article 2(c) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation".

The Court emphasised that EU law takes precedent over national law, even if it concerns a Member State's constitution, and any national measures shouldn't undermine the effectiveness of the EU in its territory. That also means that EU legislation would have to be transposed into national legislation irrespective of their discretion. The Court therefore concluded that "…Article 2(c)… must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law".

The decision is a big one, and potentially is a big blow to the music industry, but has shown more clarity in the area of quotation. The courts will undoubtedly grapple with this decision in the coming years, particularly due to the nature of whether a sample can be recognized within a different song where it is copied. This writer agrees with the Court, but will wait to see whether, or if at all, the decision will have an impact on the music industry.

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