[Guest Post] 21 and illegal in all states? The German Pelham court confirms when sampling is illegal

The much anticipated Pelham judgment was published on the 30th April 2020. Currently, it is only available in German, but Alan Hui has kindly provided an English translation, and this post on the decision. Alan is a postdoctoral researcher in the MASHED Project led by Ragnhild Brøvig-Hanssen at the University of Oslo. His research focuses on mashups, copyright law and platform regulation. In his spare time, he plays music for improvised theatre (which are usually not protected by copyright) and indulges his fondness of cats, including those of the IP variety. Here's what he has to say on Pelham:

Norwegian Rectangle
Alan Hui

Two decades into the Pelham v Hütter saga, the German Federal Court of Justice has confirmed when sampling is illegal under German copyright law. Few copyright litigations reach adulthood but this legal dispute over a two-second sample from Kraftwerk’s Metall auf Metall (Metal on Metal) in Nur Mir comes 21 years after reaching the Regional Court of Hamburg in 1999 (308 O 90/99). In its fourth decision, the Federal Court of Justice confirmed that recognizable sampling of a phonogram will usually infringe the phonogram producer’s reproduction right under German law. In this Katfriend’s estimation, this judgement is unwelcome news for producers of mashups and remixes in the EU. A question remains as to whether other EU national cases regarding copyright and music sampling will come to a similar and uniform legal position.

A German sequel to an EU trilogy

The Federal Court of Justice’s decision (I ZR 115/16) provides a sequel not only to the CJEU decision in Pelham (C-476/17), but to the full trilogy of decisions from 29 July 2019, including Spiegel Online (C516-17) and Funke Medien (C469-17). While I focus Pelham matters here, the decision shows unity with the CJEU’s harmonisation of EU law, including towards a high level of copyright protection. Ahead of a full judgement covering all three matters, the Court has published a summary of its Pelham decision as part of a press release (No. 46/20) in German, see also my English translation on University of Oslo website). Press releases summarizing its decisions in Spiegel Online (No. 44/20) and Funke Medien (No. 45/20)are also available.

Recognisable sampling is not free use after Information Society Directive

In light of the CJEU Pelham judgement, the Federal Court of Justice clarifies how the reproduction, communication and distribution rights granted by Articles 2, 3 and 4 of the InfoSoc Directive apply to music sampling. Regarding the reproduction right, the Court aligns with the CJEU, finding that a sample that is recognisable to an average music listener was an Article 2 reproduction of a phonogram of the InfoSoc Directive, no matter how short the sample is. The Court also rules that the free use limitation in German copyright law (freie Benutzung, § 24 Urheberrechgesetz) permitted the reproduction of samples before the InfoSoc Directive. However, the limitation does not apply to reproductions after the InfoSoc Directive came into effect on 22 December 2002, restricting Member States from granting exceptions and limitations unless they were listed in Article 5 of that directive. The Court also confirms that relevant InfoSoc exceptions and limitations—for quotation, parody and caricature and incidental inclusions—do not permit reproduction by sampling. It follows that for any reproductions from 22 December 2002, the defendants in the case can no longer rely on any German limitation or exception to permit their sampling. Ultimately, the Court defers to the Higher Regional Court to decide whether there was any reproduction in this particular case after the InfoSoc Directive, and declines to find any infringement.

Regarding the distribution and communication rights, the Court aligns with the CJEU by clarifying that these rights are infringed by music sampling. Unfortunately, this is an empty victory for sampling artists. EU and German copyright law grants them freedom to distribute and communicate works of sampling. However, the conditions on exceptions and limitations deny them the permission to use recognisable samples in the first place.

The potential of pastiche

The Court’s decision does provide one glimmer of hope regarding the reproduction right: pastiche. Although its analysis makes clear that exceptions for other purposes are unlikely to permit recognisable sampling, it leaves the door open for a pastiche exception. German copyright law does not include a pastiche exception, which is listed in Article 5 as an optional exception in the InfoSoc Directive. It remains to be seen how national legislators in Germany or other EU states will pursue a pastiche exception. The Copyright, Designs and Patents Act 1988 provides such an exception in section 30A, although the UK and this exception will shortly depart the EU.

Interactions with Digital Single Market Directive

Article 17(7) of the DSM Directive makes it mandatory for EU member states (and by virtue of the European Free Trade Agreement, EEA states) to adopt exceptions for quotation, criticism, review, caricature, parody and pastiche. The Federal Court of Justice casts doubt on the usefulness on all but a pastiche exception. However, given Article (17)(1) and (4) require online platforms to seek licenses in the first instance and ensure unavailability in the second instance, it is not clear than exceptions will be effective in the majority of cases. In this regard, this Katfriend is less optimistic than Julia Reda about the potential for a pastiche exception to legalise remixes.