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29 July 2019CopyrightSarah Morgan

Unauthorised sampling can infringe producer’s rights: CJEU

The unauthorised sampling of sounds fixed in a phonogram can infringe a producer’s rights, subject to certain conditions, according to Europe’s highest court.

Today, July 29, the Court of Justice of the European Union (CJEU) held that if a sound sample taken from a phonogram and used in a modified form which is unrecognisable to the ear it doesn’t infringe the producer’s rights, even without authorisation.

Under the Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of Their Phonograms, “phonogram” means any exclusively aural fixation of sounds of a performance or of other sounds.

In 1977, German electronic band Kraftwerk released a phonogram featuring the song “Metall auf Metall” (Metal on Metal).

Some members of Kraftwerk claimed that rap artist Moses Pelham had copied, by using a sample, approximately two seconds of a rhythm sequence from the song “Metall auf Metall” and used that sequence in a loop in the song “Nur mir” (Only Mine).

In 2012, Germany’s Federal Court of Justice (the Bundesgerichtshof) found in favour of Kraftwerk, but this was  overturned four years later by the Federal Constitutional Court of Germany (the Bundesverfassungsgericht) in 2016.

The constitutional court said that any negative effect that Pelham’s actions had on the band were not sufficient to outweigh artistic freedom, and referred the case back to the Bundesgerichtshof.

But the Bundesgerichtshof stayed the matter and referred a number of questions to the CJEU, asking whether the unauthorised inclusion of a sound sample in a phonogram by means of sampling taken from another phonogram constitutes an infringement of the rights of the producer.

In December last year, advocate general Maciej Szpunar  advised the CJEU that using electronic equipment to sample a phonogram and incorporate that sequence into new material without permission constitutes IP infringement.

Today, July 29, the CJEU  concluded that phonogram producers have the exclusive right to authorise or prohibit reproduction of their phonograms.

However, where a user takes a sound sample from a phonogram and uses it in a “modified form unrecognisable to the ear in another phonogram” it is not a ‘reproduction’.

Fair balance

According to the court, to regard a sample which is used as a new, unrecognisable work as constituting a ‘reproduction’ would run counter to the requirement to strike a fair balance between the interests of copyright owners in protecting their IP rights and, on the other hand, the protection of the interests and fundamental rights of users of protected subject-matter (covered by the freedom of the arts and the public interest).

“In particular, such an interpretation would allow the phonogram producer to prevent another person from taking a sound sample, even if very short, from his or her phonogram for the purposes of artistic creation in such a case, despite the fact that such sampling would not interfere with the opportunity which the producer has of realising satisfactory returns on his or her investment,” said the CJEU in its decision.

The court also concluded that an article that reproduces all or a substantial part of the sounds fixed in a phonogram amounts to a copy of that phonogram.

But in this case, where Pelham’s phonogram “merely embodies sound samples” for the purposes of creating a new and distinct work, it is not a copy.

Finally, the CJEU also held that the German legislation, which allows for independent work created using the work of another person to be used and exploited without the consent of the author of the work used, is not in conformity with EU law.

The case will now return to the Bundesgerichtshof.

Hermann Lindhorst, a partner at SCHLARMANNvonGEYSO and representative of Kraftwerk, said that his clients were confident that the Bundesgerichtshof would decide in their favour.

“Pelham has taken a piece of music in a recognisable form which infringes reproduction rights,” added Lindhorst.

According to a release from Pelham’s lawyers, Schalast Rechtsanwälte, the CJEU’s ruling enables artists to use legally secure sampling and is of fundamental importance to the music industry.

Pelham added: "Music needs artistic engagement with other works. I am therefore pleased with the decision of the CJEU—as I am sure many other musicians are.

“A large part of pop music—especially in the 90s—would not be conceivable without sampling as a form of artistic examination of other works. The decision is an important strengthening of artistic freedom.”

What is a ‘sample’?

Raffaella De Santis, senior associate at law firm Harbottle & Lewis in London, said that the conclusion of this long-running legal battle is an important case more broadly for rights owners of sound recordings in Europe.

“There is no European-wide definition of what a ‘sample’ is, nor, until this case, were there clear guiding principles about what extent and nature of use of a copyrighted work could be said to be infringing,” she said. “We now have guidance that sampling even a very short sequence from a sound recording may in principle be infringing, unless it is modified in a way which makes unidentifiable.”

According to De Santis, while the decision is a welcome clarification for rights owners, it could have a chilling effect on artistic expression in an increasing ‘remix’ culture.

“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 unauthorised copying, and to protect the value of music from those without permission to use it,” she concluded.

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