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Copyright controls over sound samples clarified

Out-Law News | 07 Aug 2019 | 8:59 am | 3 min. read

Copyright law prohibits music composers and producers from lifting samples of others' music without permission and then embedding them without alteration in their own work, the EU's highest court has said.

In its ruling, however, the Court of Justice of the EU (CJEU) confirmed that it is open to those creating new music to take samples from earlier works without the rights holders' consent and then modify them within their own recordings so that they are "unrecognisable to the ear". Such an act would not infringe the rights holders' copyright, it said.

The CJEU clarified the application of EU copyright rules to sampling in a case referred to it from Germany where two members of the band Kraftwerk have pursued a copyright infringement claim against music composers Moses Pelham and Martin Haas as well as music producer Pelham.

The dispute between Kraftwerk's Ralf Hütter and Florian Schneider-Esleben and the composers and music producer concerns alleged sampling of an approximate two-second rhythm sequence from a 1977 Kraftwerk song, 'Metall auf Metall'. Hütter and Schneider-Esleben claim the sequence has reproduced on loop in 'Nur mir', a song by the artist Sabrina Setlur that was recorded and then released by Pelham in 1997.

The dispute has already been considered by a number of courts in Germany. The last stage of proceedings saw Germany's Federal Constitutional Court ask the country's Federal Court of Justice to consider the case for a third time after the Federal Court of Justice had earlier dismissed an appeal raised by Pelham on a point of law against a lower court's ruling to impose an injunction and damages against it and order it to serve up copies of Nur Mir for destruction.

Before ruling on the case again, the Federal Court of Justice decided to ask the CJEU to clarify how EU copyright law should be interpreted in the context of sampling.

In its judgment, the CJEU considered whether a music sample falls subject to copyright law.

The court stated that, subject to the application of copyright exceptions or limitations as provided for in EU copyright law, phonogram producers have the exclusive right to authorise or prohibit reproduction of their phonograms in whole or in part. It said therefore that, in principle, the reproduction of a sound sample taken from a phonogram is to be regarded as a reproduction ‘in part’ of that phonogram and falls within the exclusive right granted to the phonogram producer, even if the sample is very short.

However, the CJEU said that where a user takes a sound sample from a phonogram to embody it in a modified form which is not recognisable anymore this would not constitute a 'reproduction' of the copyrighted work. To rule that an unrecognisable, modified sample is something rights holders could exercise control over would contradict the requirement for a fair balance between the interests of the right holders, the interests and fundamental rights of users of protected works covered by the freedom of the arts as well as the public interest, the CJEU said.

In its ruling the CJEU further clarified that that an article which reproduces all or a substantial part of the sounds fixed in a phonogram is a copy of that phonogram, but held that an article which only embodies sound samples transferred from that phonogram for the purposes of creating a new and distinct work is not such a copy.

Frankfurt-based intellectual property law expert Zeljana Opacak of Pinsent Masons, the law firm behind Out-Law, also said the CJEU had made a far-reaching finding in respect of German copyright law.

"The CJEU found that Germany's copyright legislation does not conform to the requirements of the EU's copyright directive," Opacak said. "The part of Germany's copyright regime that the EU court said does not conform provides for an exception or limitation not referred to under EU law by allowing a distinct work, created in the free use of a protected work, in principle, to be published and exploited without the consent of the rights holders."

The CJEU also considered whether businesses making use of a sound sample created by others without their permission could nevertheless benefit from the quotation exception provided for in the EU's copyright framework.

On this point, the CJEU found that the use of a sound sample taken from a phonogram allowing the work from which it was taken to be identified may constitute a quotation under certain conditions. In this regard the context in which it is used is important, with the CJEU ruling that the user of a sample must "have the intention of entering into ‘dialogue’ with that work" if they wish to benefit from the quotation exception.

However, the court confirmed that samples used must be "recognisable to the ear in that new work" to fall within the quotation exception.