The Advocate General of the ECJ has today commented on the issue of music sampling and is of the opinion that sampling, i.e. the electronic copying of music fragments, would infringe the rights of the original rights holders if they do not consent to the use.

Sampling represents a real legal challenge and is due to the fact that it is not the classic relationship between two works in copyright law, but the relationship between a sound carrier, a commercial product, and a work, a result of artistic creation.

Accordingly, the decision of the Advocate General is also the last leg of a long odyssey (for almost 20 years) through the national German judiciary, in the course of which two of the highest German courts have already given their opinion.

The BGH most recently referred the matter to the ECJ, Whether Art. 2 lit. (c) of Directive 2001/29 must be interpreted as meaning that the extraction of an extract from a phonogram for use on another phonogram (sampling) constitutes interference with the exclusive right of the producer of the first phonogram to authorise the reproduction of his phonogram within the meaning of that provision or to prohibit it if it is made without his authorisation.

The opinion of the Advocate General, which the ECJ adopts in the overwhelming majority of cases, is as follows:

It is undisputed between the parties that the appellants reproduced an approximately two-second excerpt from the rhythm sequence of the sound recording of the work “Metal on Metal” and added it to the sound recording of the work “Only Me” with minimal changes and in a recognizable manner as a rhythm sequence repeated in a continuous loop(10).

[…] In my view, there is no question that such an act constitutes reproduction within the meaning of Article 2 of Directive 2001/29, because, as has already been pointed out, that provision concerns any ‘direct or indirect, temporary or permanent … reproduction of the subject-matter of the protection, in whole or in part, by any means and in any form’. In the case of sampling, it is (mostly) a direct and permanent reproduction of a part of a sound carrier by digital means and in digital form. Thus, it seems sufficiently clear that such an act is an interference with the right of the producers of the phonogram at issue to permit or prohibit such reproduction if it is done without their permission. […]

In combination with the other reference questions, this leads to the result:

(1) Article 2(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 c 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 must be interpreted as meaning that the extraction of an extract from a phonogram for the purpose of its use on another phonogram (sampling) is an interference with the exclusive right of the producer of the first phonogram to authorise or prohibit reproduction of his phonogram within the meaning of that provision where it is made without his permission.

2. art. 9 par. 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 (Codified version) must be interpreted as meaning that a phonogram containing excerpts (samples) transmitted from another phonogram is not a copy of that other phonogram within the meaning of that provision.

3) Article 2 lit. (c) of Directive 2001/29 must be interpreted as not permitting a provision of national law of a Member State, such as that of Paragraph 24(2) of that directive, to be interpreted as meaning that it does not preclude the application of that provision. 1 of the Act on Copyright and Related Rights – Copyright Act of September 9, 1965, according to which an independent work may be created in free use of another work without the consent of the author of that work, shall apply to phonograms, because this would exceed the scope of the right of free use as defined in Art. 5 para. 2 and 3 of this Directive exceeds the exceptions and limitations to the exclusive rights provided for.

4. the provisions of Art. 5 par. 3(d) of Directive 2001/29 is not applicable where an extract from a phonogram is inserted into another phonogram without the apparent intention of interacting with that phonogram in such a way that it is indistinguishable from the rest of that second phonogram.

(5) Member States are obliged to ensure in their national law the protection of the exclusive rights listed in Articles 2 to 4 of Directive 2001/29, any limitation of those rights being permitted only within the framework of the application of the exceptions and limitations exhaustively listed in Article 5 of that Directive. However, Member States are left to choose the means they deem appropriate to meet this obligation.

6 The exclusive right of phonogram producers to authorize or prohibit the partial reproduction of their phonograms pursuant to Art. 2 lit. c of Directive 2001/29 to permit or prohibit the partial reproduction of their phonograms does not infringe the freedom of art enshrined in Article 13 of the Charter of Fundamental Rights of the European Union in the case of its use for sampling purposes.

The full opinion of the Advocate General can be found here.