The AG Opinion in Metall auf Metall: it's not a fundamental rights violation to say that sampling requires a licence

Moses Pelham

Earlier this week The IPKat reported that Advocate General (AG) Szpunar has now issued his (non-insubstantial: 100 paragraphs) Opinion in Pelham, C-476/17 (the Metall auf Metall case). As readers know, this referral from Germany is asking the Court of Justice of the European Union (CJEU) to provide guidance on the lawfulness of unlicensed sampling.

Sampling is the taking of the sounds fixed in a phonogram in order to incorporate them into a new phonogram that contains a new work: here's an example in which Italian hip hop artist Mondo Marcio realized an entire album, where each track samples (with a licence) from iconic 1960s singer Mina.

It has to be said that, in the immediate aftermath of its release, commentators appeared rather disappointed with the Opinion, which recommends the CJEU to rule that unlicensed sampling may be a copyright infringement.

Having now had a chance to read the full text, in my view (or own - much more modest - Opinion) these criticisms are excessive. The reasoning of the AG is in fact in line with the interpretation of EU copyright rules as consistently provided by the CJEU over the past few years; as regards the fundamental rights aspect, the Opinion is important because it shows the need for a careful - rather than ideological - weighting of different rights which are potentially in conflict with each other.

Let's see a bit more in detail how the AG reasoned.

Sampling as reproduction under the InfoSoc Directive

The first issue to address related to whether the concept of 'reproduction in part' in Article 2 of the InfoSoc Directive should be intended as also encompassing the taking of part of a phonogram for inclusion in another phonogram.

To answer this question, the AG recalled that in Infopaq the CJEU did not set a quantitive threshold [this is a welcome clarification, as it is at times suggested that in that case the CJEU said that, if you copy less than 11 words, ie the amount at issue in the background Danish proceedings, then that is not a reproduction: the CJEU never stated that]. What the CJEU did say was that:

• Individual words are not protected, because they are not (literary) works;
• A part of a work is entitled to the same protection as the whole, insofar as that part is sufficiently original in the sense that it is its author's own intellectual creation.

According to the AG, this finding is "obvious":

the author of a literary work cannot appropriate common words or expressions, in the same way that a composer cannot claim an exclusive right over the notes or a painter a right over the colours. However, this in no way constitutes recognition of a de minimis threshold in the protection of works by copyright, but is simply the result of the definition of the work, within the meaning of copyright, as an intellectual creation of the author of the work. 

The same reasoning cannot however apply to phonograms: while it is incorrect to think (as some of the interveners argued) of a quantitative threshold to protection, in the sense that only fragments long enough to represent the investment made by producers should be entitled to it, it should be noted that a phonogram is not subject to any originality requirement. This is a distinction that might appear odd (it did appear odd to me when I first encountered it in relation to UK copyright with 'content copyrights' and 'signal copyrights', on which see an application in Tixdaq here). However, in the context of phonograms and sampling, it clarifies what copyright protects and what it does not: while anyone is free to reproduce parts of a musical work that are not protected as copyright works or parts thereof, the same is not true for a recording of that work. 

So, this might mean that, while these 4 chords might be used by anyone, the same would not be true for the phonograms that include a recording of the chords. The same would be the case for the recording of a work that is now in the public domain, eg of La Primavera by Vivaldi.

Referring to Article 2(b) of the WIPO Performances and Phonograms Treaty, the AG concluded that

Although the rights of producers of phonograms are rights related to copyright, they are not, however, derived rights. Accordingly, the scope of protection of a phonogram is in no way subject to the scope of protection of the work that it may possibly contain.

"I thought they were free samples!"

It follows that the protection granted to phonogram producers is not limited to those parts of the phonogram that constitute a substantial part of it: in this sense, any analogy with the Database Directive and the sui generis database right, should be one a contrario. This interpretation would be confirmed by Article 11 of the WIPO Performances and Phonograms Treaty, as derived from Article 10 of the Rome Convention.

In conclusion, any sampling of a recording might be considered a reproduction under the InfoSoc Directive.

Is the phonogram that contains the sample a copy of the phonogram sampled ... for the sake of the right of distribution in the Rental and Lending Rights Directive?

The second question is vaguely more esoteric: it is whether the phonogram that contains the sample can be regarded as a 'copy' of the first recording within Article 9(1)(b) of the Rental and Lending Rights Directive. The issue here, however, is not about reproduction (as one might think): rather it is about the concept of 'copy' for the sake of the right of distribution (hence, the esotericism ...).

The AG noted that that provision should be interpreted in light of the objectives of the directive in which it is included, which in this case are protection against 'piracy'. What Article 9 protects is the right of producers not to have unlawful copies of their phonograms placed on the market. In this sense, and in light of the Geneva Convention, the meaning of 'copy' must be intended as referred to the whole of a phonogram, not part of it. In this sense, it is narrower than the concept of 'copy' in the InfoSoc Directive.

Sampling is not used to produce a phonogram that replaces the original phonogram, but to create a new work independent of that phonogram. In the same way, a phonogram created through sampling does not incorporate all or a substantial part of the sounds of the original phonogram. Such a phonogram should not therefore be classified as a copy within the meaning of Article 9(1)(b) of Directive 2006/115.

Is sampling protected as German free use or as a quotation?

The answers to these questions, together with the one on fundamental rights one (see in what follows), are those that have likely caused the highest level of concern among initial commentators.

Should sampling be regarded as an act of reproduction, the German court is asking in fact whether unlicensed sampling might be nonetheless shielded from liability due to it being considered a 'free use' under German law or a 'quotation' under Article 5(3)(d) of the InfoSoc Directive.

With regard to German free use ("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."), the AG considered it only relevant with regard to the InfoSoc Directive and noted how this piece of EU legislation sets an exhaustive list of available exceptions and limitations. This means that Member States cannot go beyond that list, and something like the German provision:

• would not be 'saved' by the grandfather clause in Article 5(3)(o). That would be so because, first, what the German provision covers is neither limited to "certain ... cases of minor importance" nor does it only apply to analogue uses of protected subject matter. 
• would be also contrary to the three-step test in Article 5(5).

Turning to quotation, the AG did not refer expressly to what, as of today, remains the most relevant CJEU case in this area: Painer. However, he noted that a quotation:

• does not have to be limited to certain types of works only, and can only encompass extracts of phonograms;
• does need to be "for purposes such as criticism or review’". Use of the phrase 'such as' does not mean that only criticism or review are acceptable purposes of a quotation, but is in any case indicative that "the quotation must enter into some kind of dialogue with the work quoted. Whether in confrontation, as a tribute to or in any other way, interaction between the quoting work and the work quoted is necessary." [the same, the AG noted, would be the case should one consider the parody exception instead];
• must be unaltered and distinguishable from the work in which it is incorporated;
• must indicate the source of the quotation (unless this is impossible).

Accordingly,

Sampling in general, and the use of the phonogram at issue in the main proceedings in particular, do not satisfy those conditions. The aim of sampling is not to enter into dialogue with, be used for comparative purposes, or pay tribute to the works used. Sampling is the act of taking extracts from other phonograms, which are used as raw materials, to be included in new works to form integral and unrecognisable parts. Moreover, those extracts are often modified and mixed in such a way that all original integrity is lost. It is not therefore a form of interaction but rather a form of appropriation. The case in point, where an extract from a phonogram — too short to allow any interaction — is repeated in a loop throughout the new phonogram for use as the rhythm section, is a perfect illustration. 

Is there a human right to sample?

The final question is asking whether copyright protection in the phonogram might be trumped by the need to safeguard the freedom of (artistic) expression of the person who samples under Article 13 of the EU Charter of Fundamental Rights.

The AG noted how, prima facie, an opposition between copyright and freedom of artistic protection might seem paradoxical. In addition, freedom of artistic expression is not limitless and should be understood in its appropriate context:

Freedom of expression, from which the freedom of the arts emanates, concerns above all obtaining and disseminating ideas and information and, consequently, as regards art, the content of works. It is the censorship of that content which is particularly likely to lead to a violation of the freedom of the arts. I take the view, however, that the freedom of artists is less extensive so far as concerns acquiring the means of their creation. Artists must adapt to societal living conditions and the situation of the market on which they operate. The freedom of the arts does not free artists from the constraints of everyday life. Is it conceivable for a painter to rely on his freedom of creation so as not to pay for his paint and paintbrushes?  

It is true that, in musical genres such as hip hop or rap, sampling plays a special role which provides not only the means of creation, but also constitutes an artistic process in itself. However, this cannot be a decisive argument in the legal discussion, since the interpretation of rules of law must be the same for all. If the sampling of extracts of phonograms without the authorisation of the rightholder were considered lawful, that would be true for hip hop artists as well as all other musicians.

In conclusion:

freedom of the arts cannot guarantee the possibility of free use of whatever is wanted for creative purposes.

Cariou v Prince

Comment

As mentioned in the opening of this post, the AG Opinion appears in line with the current EU copyright framework and - importantly - it reiterates the need to consider that the balancing of different fundamental rights is a complex exercise which needs to be undertaken when designing relevant exceptions and limitations, implementing EU provisions into national law (including optional ones, like exceptions and limitation), and applying the law to specific situations.

Above all, the weighing of different rights and interests in specific cases should consider all relevant circumstances: in this sense, the outcome of assessment in a case like the one in the Afghanistan Papers case might be different from, eg, sampling of musical content.

In the art field, should the Court decide to follow the AG, one might wonder about the implications, not just for sampling in the music sector, but also, eg, for appropriation art. In this sense, it would be interesting to think of how a case like Cariou v Prince (in which the appropriation by the defendant of most of the works of the plaintiff was considered 'fair use') would be decided by using the perspective of AG Szpunar in Pelham and considering the EU copyright framework instead of the US one.

Let's now see what the CJEU thinks ...