“The initial lesson from the CJEU ruling seems to be that the exceptions and limitations set out in the 2001 Directive will be interpreted strictly by Europe’s courts, in contrast to the more flexible fair use-based approaches found in jurisdictions such as the United States—even though the result may well be the same.”
The Court of Justice of the European Union (CJEU) has ruled that a phonogram producer can prevent another person from taking a sample, even if it is very short, and including it in another phonogram, “unless that sample is included in a modified form unrecognisable to the ear.”
The Court was interpreting certain provisions of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the 2001 Directive) in the light of the rights enshrined in the Charter of Fundamental Rights of the European Union. See Pelham GmbH, Moses Pelham, Martin Haas v. Ralf Hütter, Florian Schneider?Esleben (Case C-476/17, July 29 2019).
The case concerned a two-second sample of the Kraftwerk track Metall auf Metall, which was used in the song Nur mir, composed by Pelham and Haas. Hütter and Schneider?Esleben, members of Kraftwerk, brought an action for copyright infringement in the German courts, and the Bundesgerichtshof (Federal Court of Germany) referred six questions to the CJEU.
Is a Sound Sample a Reproduction?
The CJEU noted that Article 2(c) of the 2001 Directive provides that EU Member States should provide the exclusive right to phonogram producers “to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part.” These words should be given their usual meaning in everyday language. In line with the general objective of the directive, namely to establish a high level of copyright protection, and the specific objective to protect a phonograph producer’s investment, even a very short sound sample would constitute a reproduction in part.
But the 11-member Court added that a balance must be struck between IP rights and other fundamental rights, including freedom of expression: “In exercising that freedom, the user of a sound sample, when creating a new work, may decide to modify the sample taken from a phonogram to such a degree that that sample is unrecognisable to the ear in that new work.” A sample used in a modified form does not constitute ‘reproduction,’ and “would not interfere with the opportunity which the producer has of realising satisfactory returns on his or her investment.”
The Court’s main finding should provide the basis for Kraftwerk to succeed in its action when the case returns to the German courts. The CJEU also addressed the other questions referred, finding:
- Article 9(1)(b) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, which concerns the distribution right, must be interpreted to mean that a sample does not constitute a ‘copy’ since it does not reproduce all or a substantial part of the phonogram.
- A Member State cannot lay down an exception or limitation to the phonogram producer’s right other than those provided in Article 5 of the 2001 Directive. The so-called “right to free use” in German law (Paragraph 24(1) of the German Copyright Law) therefore does not conform with EU law.
- The exception for “quotations” provided in Article 5(3)(d) of the 2001 Directive “does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question”. The use of a sound sample may be considered a quotation if it has the intention of entering into dialogue with the work from which the sample was taken.
- Finally, Article 2(c) of the 2001 Directive must be interpreted as constituting a measure of full harmonization of the corresponding substantive law.
There will likely be considerable analysis of the Pelham ruling in the coming months, given the widespread use of samples in contemporary music. The initial lesson seems to be that the exceptions and limitations set out in the 2001 Directive will be interpreted strictly by Europe’s courts, in contrast to the more flexible fair use-based approaches found in jurisdictions such as the United States—even though the result may well be the same.
She added: “Where we may well see a difference is in the creative process itself, in making and releasing music, especially in sample-heavy genres such as hip hop. The CJEU has shown itself to be firmly on the side of rights holders to enforce their rights against unauthorized copying, and to protect the value of music from those without permission to use it.”
Spiegel and Funke Medien Cases
The CJEU issued judgments in two other cases concerning the 2001 Directive, both also referred from the Bundesgerichtshof, on the same day as the Pelham ruling.
One case addressed the exceptions provided in Article 5(3) regarding reporting of current events and quotations. It involved an attempt by a politician, Volker Beck, to stop the online news portal Spiegel Online from making available the complete text of his manuscript and article for downloading. See Spiegel Online GmbH v. Volker Beck (Case C-516/17, July 29 2019).
The CJEU ruled that freedom of information and freedom of the press, as enshrined in the Charter of Fundamental Rights of the EU, are not capable of justifying a derogation from the author’s exclusive rights beyond the exceptions and limitations contained in the Directive. National courts must strike a balance between the author’s exclusive rights and the rights of users, taking account of the fundamental rights in the Charter.
The Court said the exception in Article 5(3)(c), covering reporting of current events, precludes “a national rule restricting the application of the exception or limitation … in cases where it is not reasonably possible to make a prior request for authorisation.” It further said that the “quotation” exception in Article 5(3)(d) “covers a reference made by means of a hyperlink to a file which can be downloaded independently.” A work has “already been made lawfully available to the public” where it was previously made available with the right holder’s authorization or in accordance with a license or statutory authorization.
The third case concerned the publication by the German newspaper Westdeutsche Allgemeine Zeitung of leaked Parliamentary briefings on military matters (the so-called Afghanistan papers). The German government brought an action for copyright infringement against the newspaper’s publisher, raising two issues: Can the briefings be protected under copyright law as “literary works”? And can freedom of information justify a derogation from the rights of copyright holders? The questions referred were on the second issue, but the Court addressed both. See Funke Medien NRW GmbH v. Federal Republic of Germany (Case C-469/17, July 29 2019).
The Court said it is for the national court to determine whether the briefings are “works” protected by copyright, and to ascertain whether, “in drawing up those reports, the author was able to make free and creative choices capable of conveying to the reader the originality of the subject matter at issue, the originality of which arises from the choice, sequence and combination of the words by which the author expressed his or her creativity in an original manner and achieved a result which is an intellectual creation.” If the papers are “purely informative documents” then they are not the author’s own intellectual creation and therefore not “works.”
Consistent with the Spiegel judgment, the Court went on to say that national courts must strike a balance between the exclusive rights of the author and the rights of users, having regard to all the circumstances and adhering the fundamental rights in the Charter. In this case, the courts should take into account whether “the nature of the ‘speech’ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest.” As the publisher had published the briefings on its website, structured them with an introductory note, further links and a space for comment, “it would need to be held that the publication of those documents may amount to ‘use of works … in connection with … reporting’” and therefore fall within the Article 5(3)(c) exception.
Image Source: Deposit Photos
Image ID: 63858405
Join the Discussion
One comment so far.
patrik zAugust 2, 2019 04:34 am
I wonder if the author of this post has ever listened to “Nur mir” and to the Kraftwerk sample. The isolated sample (which is at issue here) was played during arguments at the Constitutional Court, and with that in mind I would submit that its use in “Nur mir” is most certainly not “unrecognisable to the ear” (assuming an ordinary understanding of “unrecognisable”, that is …). None of the national courts has ever claimed that it is unrecognisable or anything of that kind, and the CJEU says nothing about whether in this case the sample was unrecognisable. The Court just responded to the Federal High Court’s broader question of whether all uses of phonograms are reproductions.
In fact, the Hamburg Court of Appeals specifically found that while the speed of the sample was reduced by 5 percent and a metric shift was applied (whatever that means), “these changes, even for a musically receptive and attentive listener […] are barely noticeable” and that “during the entire piece [Nur mir] the copied sequence […] is clearly perceptible” (Oberlandesgericht Hamburg of 17 August 2011, 5 U 48/05, Metall auf Metall 2). So I’m very much confused about the press coverage that this decision has received …