BREAKING: AG Szpunar advises CJEU to rule that unlicensed sampling MAY be a copyright infringement and German free use may be contrary to EU law

Moses Pelham
Last year The IPKat reported that the German Federal Court of Justice (BGH) had referred the longstanding Metall auf Metall litigation to the Court of Justice of the European Union (CJEU). The case is now Pelham and Others, C-476/17.


The referral arose out of the longstanding and complex litigation in Germany concerning the unauthorized sampling by music producer Moses Pelham of a 2-second rhythmic sequence from Kraftwerk's 1977 song Metall auf Metall for use in his own 1997 Nur Mir. The sample featured in the latter’s song (performed by Sabrina Setlur) is a continuous background loop. 

Following a number of lower courts' decisions and an instalment before the German Constitutional Court, the case is now pending before Germany’s Federal Court of Justice for the third time. This court decided to stay the proceedings and seek guidance from the CJEU on the correct interpretation of EU law with regard to the notion of ‘reproduction in part’ for phonograms under Article 2(c) of the InfoSoc Directive in order to determine whether a 2-second sample may fall within the scope of the right of reproduction. 

The question is whether a phonogram sampling an earlier phonogram is a copy of it within the meaning of Article 9(1)(b) of the Rental and Lending Rights Directive.

Should the answer be in the affirmative, then the referring court asks: whether the German 'free use' exception within §24(1) of the German Copyright Act (Urheberrechtsgesetz – UrhG) (‘An independent work, created in the free use of the work of another person, may be published and exploited without the consent of the author of the work used.’) is compatible with EU law; should the defendants be unable to rely on the 'free use' exception, whether the quotation exception within Article 5(3)(d) of the InfoSoc Directive might nonetheless shield them from liability on grounds quotation would be a 'right', rather than just an exception; what role the rights granted by the EU Charter of Fundamental Rights play, with particular regard to the interplay between Article 17(2) (copyright protection) and Article 13 (freedom of the arts) therein.

Why it matters

The case is very important for a number of reasons:
  • First, because it will serve to gauge the impact of the seminal decision in Infopaq and its progeny in relation to the right of reproduction as applied to sampling musical content; that is taking part of a sound recording for re-use in a different song or piece. It is expected that the outcome of this referral will serve to qualify further what is meant by ‘reproduction in part’ under Article 2 of the InfoSoc Directive
  • Second, because it will require the Court to weigh in on the interplay between economic rights and exceptions and limitations, including the 'right' to quote [under Article 10(1) of the Berne Convention 'quotation' appears like a right, but under Article 5(3)(d) InfoSoc Directive it is formally just one of the various optional copyright exceptions]. This will be particularly important in a number of creative fields, especially music, where the lawfulness of practices like unlicensed sampling and remixing remains controversial.
  • Third, this case is one of the few ones currently pending before the CJEU asking about the role of different fundamental rights in the context of copyright protection: readers will in fact remember the recent Opinion of Advocate General (AG) Szpunar in the Afghanistan Papers cases [here], and might be aware that on 10 January there will be another Opinion of AG Szpunar, the one in Spiegel Online, C-516/17 [background here].

Also Merpel
loves free samples
Today's AG Opinion

This morning AG Szpunar delivered his Opinion in the case. The text is not yet available, but according to the press release, AG Szpunar reasoned as follows:

First, a phonogram producer has in principle the right to do or authorize others to do any reproductions thereof, and is a right that exists irrespective of protection of the work embodied in the recording:
The fact that the right of the phonogram producer in the phonogram is aimed at protecting his financial investment does not preclude that right from covering other uses such as sampling.
It follows that
the taking an extract of a phonogram for the purpose of using it in another phonogram (sampling) infringes the exclusive right of the producer of the first phonogram to authorise or prohibit the reproduction of his phonogram, where it is taken without his permission. 
Second, with regard to whether a phonogram which contains extracts transferred from another phonogram (samples) constitutes a copy of another phonogram, the AG pointed out that, in accordance with the Rental and Lending Rights Directive, a copy incorporates all or a substantial part of the sounds of a protected phonogram and is intended to replace lawful copies thereof:
Since sampling is not used to produce a phonogram that replaces the original phonogram and does not incorporate all or a substantial part of the sounds of the original phonogram, Advocate General Szpunar concludes that such a phonogram does not constitute a copy of that other phonogram. 
Third, the AG held the view that the InfoSoc Directive precludes a provision - like German free use - according to which an independent work may be created in the free use of another work without the consent of the author of the work used, in so far as it exceeds the scope of the exceptions to and limitations on exclusive rights provided for in that directive. 

Fourth, with regard to the quotation exception, the AG stressed that:
a quotation must satisfy certain conditions in order to be considered lawful, in particular, that it must enter into some kind of dialogue with the work quoted, the extract quoted must be incorporated in the quoting work without modification and finally a quotation must indicate the source, including the author’s name.
According to the AG sampling would not be a quotation, and would be as such ineligible for protection as such.

Fifth, with regard to the degree of latitude afforded to the Member States in transposing the provisions of the InfoSoc Directive, the AG noted that:
those rights are worded unconditionally and the protection of those rights in the national law of the Member States is mandatory. Accordingly, those rights can be limited only in the application of the exceptions and limitations listed exhaustively in that directive. Member States are nevertheless free as to the choice of form and methods which they consider appropriate to implement in order to comply with that obligation. 
Finally, with regard to the possible primacy of the freedom of the arts over the exclusive right of phonograms producers, the AG found that
the exclusive right of phonogram producers to authorise or prohibit reproduction, in part, of their phonograms in the event of its use for sampling purposes is not contrary to that freedom as enshrined in the Charter of Fundamental Rights of the European Union. Copyright and related rights establish a rightholders’ monopoly over intellectual or artistic property and are likely to restrict the exercise of certain fundamental rights, in particular, the freedom of expression and the freedom of the arts. In addition, intellectual property is itself protected as a fundamental right to property. It is therefore necessary to strike a balance between those rights. In the view of the Advocate General, the requirement of obtaining a licence for use such as that at issue in the main proceedings does not restrict the freedom of the arts to a degree that extends beyond normal market constraints. 
A more detailed commentary will follow as soon as the text of the Opinion becomes available: stay tuned! For the time being, it looks like another VERY interesting and thoughtful Opinion of AG Szpunar ... 

BREAKING: AG Szpunar advises CJEU to rule that unlicensed sampling MAY be a copyright infringement and German free use may be contrary to EU law BREAKING: AG Szpunar advises CJEU to rule that unlicensed sampling MAY be a copyright infringement and German free use may be contrary to EU law Reviewed by Eleonora Rosati on Wednesday, December 12, 2018 Rating: 5


  1. Thank you very much, Eleonora, for reporting this important case and also for your thoughtful discussion based just on the first press release!

    The complete text of the opinion is now available (in most official languages of the EU) at < >.

    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.

    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).

    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.

    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.

    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).

    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.

    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.

  2. (continuation from previous comment)

    § 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.

    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.

    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.

    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.

  3. 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.


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