tag:blogger.com,1999:blog-5574479.post7102332560591592409..comments2024-03-29T06:53:23.405+00:00Comments on The IPKat: BREAKING: AG Szpunar advises CJEU to rule that unlicensed sampling MAY be a copyright infringement and German free use may be contrary to EU lawVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5574479.post-9207322731983062562018-12-14T10:31:42.837+00:002018-12-14T10:31:42.837+00:00Utter craziness that is going to decimate creative...Utter craziness that is going to decimate creative industries in the EU. Another example of old school jurists imposing their worldview on all of us. Gerontocracy in action.Mindaugas Kiskishttp://kiskis.eunoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-23949675004798377582018-12-14T04:21:25.780+00:002018-12-14T04:21:25.780+00:00(continuation from previous comment)
§ 24(1) UrhG...(continuation from previous comment)<br /><br />§ 24(1) UrhG clarifies that authors of works that have been used "freely" in this sense cannot claim that the authors of the new works who have used their respective earlier works in such a way must seek their consent in order to be allowed to exploit their own new work. If it is, indeed, an "independent work", as specified by the law, nobody else but the author of this new, independent law shall be entitled to the exclusive rights in this work. <br /><br />If it is somehow dependent (§ 23 UhrG) or a result of co-authorship or joint authorship (§§ 8-9 UrhG), however, the authors and right holders of the earlier works that have been used and can be recognised as contributing a more or less substantial part of the new work should be asked for permission and should also be entitled to an appropriate share of the profits from the exploitation of the new work. <br /><br />In some cases, it may be difficult to distinguish between a more or less thorough transformation of a given work that remains derivative and a case of "free use" that results in an independent work. In some cases such distinctions may be controversial, and time and again, if much is at stake, such cases go to court. German courts have produced a number of decisions that should help to clarify the criteria regarded as relevant to draw this distinction in a fair, appropriate and consistent way.<br /><br />Let us hope that the Court gets it right in this case and does not produce a decision that would be bad for music, art and cultural evolution - and bad for the further acceptance of European law.<br />Eberhard Ortlandnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-37580020387160382312018-12-14T04:19:15.849+00:002018-12-14T04:19:15.849+00:00Thank you very much, Eleonora, for reporting this ...Thank you very much, Eleonora, for reporting this important case and also for your thoughtful discussion based just on the first press release! <br /><br />The complete text of the opinion is now available (in most official languages of the EU) at < http://curia.europa.eu/juris/document/document.jsf?text=&docid=208881 >.<br /><br />The Opinion of AG Szpunar deserves close scrutiny because it makes a couple of bold claims that could shape European law and the conditions for the production and distribution of music (not only in Europe) in a deeply problematic way.<br /><br />It might be noteworthy that in this case, written observations were submitted not only by the parties in the main proceedings, but also by the German, French and UK Governments and the European Commission (sect. 17). The AG apparently dismisses most of the arguments and considerations raised in these statements (sects. 20, 27, 39).<br /><br />In his introduction (sect. 3), Szpunar cites Tonya Evans' seminal article on sampling and hip hop music (2011), but, I am afraid, he fails to grasp what is going on in this kind of music and (therefore?) cannot make up his mind on the question whether the Kraftwerk sample is "recognisable" in Pelham's song (sect. 25) or rather "unrecognisable" (sect. 67). The latter view is relevant for Szpunar's argument why the quotation exception should not be applicable to sound sampling. <br /><br />In Sect.s 64 and, in particular, 65, Szpunar introduces several conditions for quotations permitted under the quotation exception as outlined in Art. 5(3) d) of the Infosoc Directive. The AG does not consider it necessary to cite any authorities to demonstrate that these criteria indeed reflect established practice, but he seems to assume that everybody should agree that these are the relevant and necessary conditions. Yet it is noteworthy that these conditions do not appear in Art. 5(3) d) of the Infosoc Directive 2001/29 EU. And introducing such requirements might violate the quotation right enshrined in Art. 10(1) of the Berne convention. <br /><br />The most controversial issue, at least from the tradition of German copyright law, will probably be Szpunar's rejection of § 24(1) of the German copyright act (UrhG) as allegedly incompatible with the exhaustive list of exceptions and limitations to copyright provided in Art. 5 of the Infosoc Directive, and therefore no longer permissible under harmonised European copyrighr law (sects. 50-59).<br /><br />It is hard to believe that, unfortunately, nobody seems to have explained to the AG that § 24(1) UrhG does not introduce an exception to the exclusive right of authors for certain kinds of use of protected works under certain circumstances like those specified in §§ 44a-63a UrhG. § 24(1) simply addresses the well-known and pervasive fact that more or less every 'original work of authorship' somehow relates to some previous work of (individual or collective) authorship. <br /><br />Every copyright law, therefore, needs to provide a distinction between works deemed derivative (like adaptations, transformations, translations, stagings, or restorations, cf. §§ 3 or 23 UrhG) and new works that nobody would regard as derivative but which are acknowledged as "independent work", notwithstanding the fact that some previously known work of another person, or other persons, or material from the public domain, may have been used in the creation of such a new work, albeit in such a way that the characteristic features of the new work are not determined in any significant way by the material taken from previous work. <br />Eberhard Ortlandhttp://www.uni-bielefeld.de/ZIF/FG/2015Copying/noreply@blogger.com