This post was originally published in iPunkt, our German language newsletter and has now been translated for LimeGreen IP News.

In December 2018, CJEU Advocate General Szpunar took the view that the reuse of a sound sequence in a new song (referred to as sampling) without the author’s permission violates copyright law (case C-476/17 – Moses Pelham et al.). According to the Advocate General, it must not be assumed that artistic freedom prevails over the right to property of phonogram producers.

The dispute relates to the taking of a two-second sound sequence from the song “Metall auf Metall” by the band “Kraftwerk”, which was originally released in 1977 ). Almost twenty years later, the artist Moses Pelham, among others, took the sound sequence and used it for the production of the track “Nur mir” by Sabrina Setlur. The sequence was slowed down by 5% and then repeated in a loop. No licence was obtained for the sample.

The Plaintiffs regarded this as an infringement of their related right as a phonogram producer (see our earlier post.

Opinion:

Advocate General Szpunar took the view that the use of a sample without consent constitutes an infringement of phonogram producers’ right of reproduction. He stated that a distinction must be made between the protection of the recorded work and of the phonogram. Spuznar deemed that a phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds (i.e. of the work), but rather on account of the fixation itself. In his opinion, this means in particular that these areas of protection are not identical.

On this basis, the Advocate General concluded that the producer of the phonogram also has the right to generate income not only by selling copies, but also by authorising sampling.

The Advocate General was also of the view that the artist cannot justify the sampling on the basis of the right of free use or the right of quotation. He stated that the exceptions and limitations in Directive 2001/29 are exhaustive. In his opinion, there is a degree of latitude in the manner in which the barriers of art. 5 of the InfoSoc Directive are transposed into national law, but the right of free use is not provided for in art. 5 of the InfoSoc Directive. The Advocate General found that the artist cannot invoke the right of quotation as there is no apparent intention of triggering an interaction with the original work; in particular, the extract must be incorporated without modification and the source must be indicated, which is not the case here.

In conclusion, Advocate General Szpunar assumed that, in the case of sampling, the right of phonogram producers prevails over the right to artistic freedom. In his view, although artistic freedom is in principle capable of restricting the rights of phonogram producers (right to property), the right to artistic freedom is not unreasonably prejudiced if an artist uses a sequence, but must obtain a licence to do so. The Advocate General argued that, in the weighing of interests, the right to property must therefore prevail. He compared the need to acquire a licence with a painter having to buy paint and paintbrushes.

Comment:

Another chapter has been written in the story surrounding the song “Metall auf Metall”, which may now be nearing its conclusion. The forthcoming CJEU judgment means that three of the highest courts in Europe have all dealt with the case. To date, the matter has been brought before the German Federal Court of Justice [Bundesgerichtshof – BGH] three times and the German Federal Constitutional Court [Bundesverfassungsgericht – BVerfG] once. Now, the CJEU is about to issue a decision on the case, which will be followed by another ruling by the German Federal Court of Justice.

The use of samples is deeply ingrained in hip hop music and is common practice. For decades, sound sequences have been taken from existing songs and then (usually) edited for use in new works. For example, Alterations in pitch or speed are often made to sequences before they are used. For this reason, the German Federal Constitutional Court also remarked that art. 5 para. 3 sentence 1 of the German Basic Law [Grundgesetz – GG] was insufficiently taken into account by the German Federal Court of Justice in its weighing of interests: instead of curbing piracy, artists’ creative expression is being hindered, according to the German Federal Constitutional Court.

The weighing of interests carried out by the Advocate General contradicts at least partially the idea expressed by the German Federal Constitutional Court. Contrary to the opinion of the German Federal Constitutional Court, the Advocate General believes that the possibility of generating income from issuing licences for sampling is covered by the protective scope of freedom of ownership pursuant to the EU Charter of Fundamental Rights. In contrast, the German Federal Constitutional Court assumed in its judgment that this does not necessarily have to be the case.

Moreover, the German Federal Constitutional Court deemed at the time that the assessment of the German Federal Court of Justice is unconvincing insofar as one specific music genre in particular, namely hip hop, is being restricted. The Advocate General disagrees with this idea and states that provisions which relate to the right of reproduction in the present case must be interpreted regardless of the music genre concerned. In principle, this is correct. Nevertheless, the view could be taken that, in the weighing of interests, more weight should be given to the argument of music genre. However, Advocate General Szpunar believes that this is the responsibility of law makers. In his opinion, a corresponding exemption provision must be introduced if required.

It will be fascinating to see how and with what result the CJEU will reconcile the conflicting interests and basic rights of phonogram producers and artists. One thing is certain though: the basic rights set out in EU law are having an increasing impact on the field of copyright and will have to be taken into account to a greater extent in this area in future.