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A Future for Unrecognisable Unlicensed Sampling yet an End to the German Free Use Exception Pelham and Others (C-476/17)

Whilst the Court of Justice of the European Union (CJEU) has recently ruled that the reproduction of even small samples of phonograms is permissible as long as they are unrecognizable to the ear, it has put an end to the “free use” exception that has existed under German law.

The decision referred to the CJEU by Germany, concerned an extensive on-going litigation between the music producer Moses Pelham who made use of a 2 second rhythmic sequence from a 1977 song “Metall auf Metall” from Kraftwerk as a continuous background loop to his own song “Nur Mir” in 1997. This was done without obtaining a lawful license opening the doors to years of litigations on copyright infringement through the possible unlawful reproduction of Kraftwerk’s phonogram in part.

Diverging at times in its conclusion from the Advocate General’s opinion, the CJEU clarified that Article 2(c) of the Directive 2001/29/EC (the Infosoc Directive) must be read and interpreted in the light of the Charter of Fundamental Rights (the Charter). The directive must be balanced specifically against the freedom of the arts, Article 13, and the freedom of expression, Article 11, of the Charter which covers the concept of “Sampling” where a sample of a phonogram is taken to create a new work. In doing so the court concluded that a phonogram producer is permitted from preventing another from taking a sound sample, regardless of its length, and distributing or reproducing it so long as this sound sample is not in a modified form that is unrecognisable to the ear. Furthermore, sampling is also not caught under the scope of article 9(1)(b) of the Directive 92/100/EEC (the Rental and Lending Rights Directive), as it does not involve a reproduction of the original phonogram in full or of a substantial part of it.

The CJEU additionally had the opportunity to bring further clarification the concept of Quotations as a possible exception which it started in the Painer case. Noting that Article 5(3)(d) of the Infosoc Directive requires a quotation to be made “in accordance with fair practice, and to the extent required by the specific purpose” it extended that this would mean that “the use at issue for the purposes of quotation must not be extended beyond the confines of what is necessary to achieve the informatory purpose of that particular quotation.”. A quotation requires therefore a justification by its purpose. This means that users of a sample could rely on the quotation exception only where the sample is recognizable to the ear as otherwise no dialogue between the original phonogram and the sample is possible of existing since the original phonogram cannot be clearly identified.

In line with previous decisions, the CJEU once again reiterated that the exceptions outlined in the Infosoc Directive are an exhaustive list of possible exceptions to copyright infringement. Holding that the German “free use” concept qualifies as an exception, therefore disagreeing that it merely constitutes an inherent limitation, the court made it clear that Germany can no longer make use of this exception under their national law. This is not only in support of greater legal certainty but also harmonization within the European Union.

Overall, the decision should be welcomed for providing some certainty and clarity regarding copyright infringement and sampling across the EU where clear inconsistency has previously existed between member states. Nevertheless, it gives rise to further questions that have been left unanswered. Firstly, it remains to be seen how it shall be determined by national courts, whether or not a sampled work is in fact unrecognisable to the ear or not. Secondly, it remains unclear to whom the work must be unrecognisable: To the occasional listener or an expert of the musical genre in question? Not only will time show where German courts will draw the line but also how other EU states will apply this test. Will it grant states with flexibility or will we see a general harmonisation among the EU states?

Additionally, it may at first sight appear slightly contradictory, for the CJEU, to state that unrecognizable samplings are not reproductions of the original work whilst still considering the application of the quotation exception to these types of samplings. Nevertheless, the additional clarification to this exception provided by this judgement should be highly welcomed in helping to achieve greater legal certainty and harmonisation in regard to quotations. Furthermore, only time will show to what effect the abolishment of the German “free use” exception will have on German copyright law as this exception has traditionally had a wider scope of application than the EU quotation exception.

Despite all, the judgement can be seen to play a fundamentally important role for the music industry especially for electronic and Hip-Hop music where sampling is widely used to create new works of music.

Author : Ester-Maria Elze

Ester-Maria Elze, holds an LL.B. with honours from Queen Mary University of London, an LL.M. in IP law from Stockholm University and is a Legal Analyst for Darts-ip.

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