Sampling may or may not infringe copyrights!

Kraftwerk’s long-running trial of Moses Pelham and Martin Haas seems to be coming to an end. Today, the ECJ has ruled.

The Bundesgerichtshof (Federal Court of Justice), which is seised of the case, sought to know from the Court, inter alia, whether, under the copyright and the law of related rights of the European Union and the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, it was interfering with the the manufacturer of a phonogram from which an audio fragment has been extracted represents the rights of the manufacturer of an audio fragment when that audio fragment is inserted into another phonogram without its consent by sampling.

In its judgment delivered today, the Court points out, first of all, that phonogram producers have the exclusive right to allow or prohibit the reproduction of their phonograms in whole or in part. Consequently, the reproduction by a user of an audio fragment taken from a phonogram, even if only very short, is, in principle, a partial reproduction of that phonogram, so that such reproduction is subject to the exclusive right of the record manufacturer.

However, there is no ‘reproduction’ where a user, in the exercise of his freedom of art, takes an audio fragment from a phonogram in order to insert it into a new work in a modified form that is not recognisable when he is listening. The assumption that such
use of an audio fragment constitutes a reproduction requiring the consent of the
producer of the phonogram would, inter alia, be contrary to the requirement to ensure an appropriate balance between, on the one hand, the interests of the holders of copyright and related rights in the protection of their intellectual property rights enshrined in the Charter and, on the other hand, the protection of the interests and fundamental rights of the users of protected subject-matter, including the artistic freedom also guaranteed by the Charter, and the public interest.

The Court then finds that an object which adopts all or a substantial part of the notes fixed in a phonogram is a copy of that phonogram for which the phonogram producer has an exclusive right of distribution. However, no such copy is an object which, like the one at issue in the main proceedings, takes over only fragments of music, possibly in amended form, which are transmitted by that phonogram in order to create a new and independent work.

Moreover, the exceptions and restrictions on the rights of rightholders provided for by EU law already reflect the fact that the EU legislature takes into account the interests of producers and users of protected goods and the general interest Has.

These exceptions and restrictions are also exhaustively regulated in order to ensure the functioning of the internal market in the field of copyright and related rights.

Therefore, the German legislation, which, despite the exhaustive nature of the
exceptions and limitations, provides for an exception or
limitation not provided for by EU law, according to which an independent work created in free use of another’s work may, in principle, be published and exploited without the consent of the author of the work used, is not compatible with EU law. With regard to the exceptions and limitations to the exclusive rights of reproduction and communication
which may be provided for by the Member States under EU law for quotations from a protected work, the Court states that the use of an audio fragment taken from a phonogram which identifies the work from which it is taken may, under certain conditions, constitute a quotation, in particular where the use is intended to interact with that work.

If the work is not recognizable, the use of the fragment does not constitute a quotation.

Finally, the Court states that, where their actions are not fully determined by EU law, Member States may apply national standards of protection of fundamental rights in the implementation of EU law, provided that, inter alia, that they do not protection level of the Charter. However, the material content of the exclusive
reproduction right of the producer of the phonogram is the subject of a full harmonization measure, so that such use must be excluded in this respect.

So if you don’t have a headache, you should urgently study law!

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.