[Guest post] BREAKING: BGH asks CJEU for clarification of ‘pastiche’

Autumn might have not officially begun yet but here's the first big EU copyright news of the season, brought to our readers by former GuestKat Mirko Brüß. Here's what Mirko writes:

BREAKING: BGH asks CJEU for clarification of ‘pastiche’

by Mirko Brüß

Metall auf Metall is the name of a Kraftwerk-Song from 1977, and also the name of now five (!) German Federal Court of Justice (BGH) decisions. Having started in 1999 before the Regional Court of Hamburg, the dispute between electronic music pioneers Kraftwerk and producer Moses Pelham has not yet come to an end.

Moses Pelham

In 2017, the BGH referred the case to the CJEU seeking guidance on the notion of reproduction in part in relation to phonograms as per Article 2(c) of the InfoSoc Directive in order to determine whether the 2-second sample may fall within the scope of the right of reproduction (reported here). The CJEU answered that unauthorized (non-trasformative) sampling can infringe a phonogram producer’s rights and German free use is against EU law (reported here and here).

Subsequently, the BGH referred the case back to the Court of Appeal (OLG Hamburg, reported here).

Meanwhile in June 2021, Germany’s implementation of Art. 17(7) DSM Directive in § 51a UrhG came into force, establishing an exception for pastiche.

Before the Court of Appeal, Pelham argued that acts committed before December 22, 2002 (phase 1), after December 22, 2002 until June 7, 2021 (phase 2) and acts from June 7, 2021 (phase 3) need to be treated differently, due to the changes of the legal framework.

The OLG found that for phase 1, the use of the sample was permissible due to the right to free use (§ 24 UrhG) on the basis of artistic freedom.

For phase 2 (under the InfoSoc Directive) the use was infringing, as the CJEU had found Germany’s free use (§ 24 UrhG) was against EU law.

For phase 3, the pastiche regulation from § 51 UrhG applies, which permits reproductions for the purpose of pastiche, i.e. the recognizable adoption or imitation with expression of appreciation or deference. The sampling carried out by Pelham was such a pastiche, the Hamburg judges found. However, since the legal meaning of a pastiche had to be clarified by interpreting Union law, the OLG allowed an appeal to the BGH (only regarding the time after June 7, 2021)

With its Metall auf Metall V decision, the BGH once more staid the proceedings to ask the CJEU for guidance. The full text has yet to be released, but here is the accompanying press release (translation and emphasis by me):

The appeal is successful if the Court of Appeal wrongly assumed that the claims asserted by the plaintiffs are excluded as of 7 June 2021 because the adoption of the rhythm sequence from the track "Metall auf Metall" by way of sampling is a permissible use for the purpose of pastiche pursuant to Section 51a sentence 1 UrhG in the version applicable as of 7 June 2021, so that there is no infringement of the ancillary copyright asserted by the plaintiffs as producers of sound recordings or performing artists and of the copyright of the first plaintiff. This is what matters in the case at issue because the musical piece "Nur mir" does not meet the requirements of a caricature or parody of the musical piece "Metall auf Metall" for lack of expression of humour or mockery (see Metal on Metal IV).

In the opinion of the Federal Court of Justice, the question first arises whether the exception for use for the purpose of pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC is a catch-all provision at least for an artistic treatment of a pre-existing work or other subject matter, including sampling, and whether restrictive criteria such as the requirement of humour, imitation of style or homage apply to the concept of pastiche. The pastiche exception could be understood as a general exception for artistic freedom, which is necessary because artistic freedom alone cannot be given the necessary scope in all cases due to the immanent limitation of the scope of protection of exploitation rights to a use of works and performances in a recognisable form (cf. CJEU, C-476/17) and the other exceptions such as, in particular, parody, caricature and quotation. The technique of "electronic copying of audio fragments" (sampling) at issue here, in which a user takes an audio fragment from a phonogram and uses it to create a new work, is a form of artistic expression that falls under the freedom of art protected by Art. 13 EU Charter of Fundamental Rights (CJEU, C-476/17). The rights of authors, phonogram producers and performers under Articles 2 and 3 of Directive 2001/29/EC enjoy the protection of intellectual property under Article 17.2 of the EU Charter of Fundamental Rights. The objective of an appropriate balance of rights and interests is taken into account by the "three-step test" provided for in Art. 5(5) of Directive 2001/29/EC, the requirements of which are met according to the findings of the Court of Appeal.

Next, according to the Federal Court of Justice, the further question arises whether the use "for the purpose" of a pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC requires a finding of an intention on the part of the user to use an object of copyright protection for the purpose of a pastiche or whether the recognisability of its character as a pastiche is sufficient for someone who is aware of the copyright object referred to and who has the intellectual understanding required to perceive the pastiche.