ECJ: Sampling of music fragments allowed- if creative

The use of an audio fragment in the sampling of music is also permitted without the consent of the phonogram producer if the music fragment is inserted in a modified form that cannot be recognized when listening to it, the ECJ today ruled in the long-running proceedings concerning the short music fragment “metal on metal” and the copyrights of phonogram producers.

2 seconds music fragment in focus

The background of the case is the short rhythm sequence in the song “Metall auf Metall” by the German band Kraftwerk from 1977. The German music producer Moses Pelham underlaid the title “Nur mir” 1997 with a loop of a few seconds with the controversial music fragment, which was inserted at a slightly slower speed. So the loop picked up the short original metallic rhythm sequence and changed it.

Since then the band Kraftwerk and Pelhem GmbH have been fighting over the sampling of the music fragment. The plaintiffs of Band Kraftwerk brought an action for infringement of ancillary copyright as a producer of phonograms. The LG Hamburg and also the OLG Hamburg upheld the complaint. The revision of Pelhem GmbH was rejected by the Senate in 2012. The Federal Constitutional Court again reversed this decision and referred the matter back to the Federal Supreme Court (BGH).

The BGH then referred questions to the EuGH on the subject of sampling music to the ECJ, which the highest European court (ECJ) answered with today’s ruling.

A music fragment that lasts for seconds is also a partial copy

Among other things, the ECJ asked the ECJ whether a phonogram such as the music fragment of the present case, which lasts for a second, is a copy of another phonogram within the meaning of Article 9(1)(b) of Directive 2006/115.

The European Court of Justice clarified that the reproduction by a user of an audio fragment of a phonogram is, in principle, to be regarded as a partial reproduction of that phonogram within the meaning of Article 2(2)(c) of the Treaty. c of Directive 2001/29. Such reproduction thus falls under the exclusive right of the phonogram producer to authorise or prohibit such reproduction in whole or in part in accordance with this provision.

Changed audio fragment in Sampling is new work

However, where a user, in the exercise of artistic freedom, takes an audio fragment or a musical fragment from a phonogram in order to use it in a new work in a modified form which is unrecognisable on hearing, such use does not constitute “reproduction” within the meaning of Article 2(b) of the Directive. c of Directive 2001/29, the ECJ ruled.

It must also be pointed out that the technique of ‘electronic copying of audio fragments’ (sampling), in which a user takes an audio fragment from a sound carrier and uses it to create a new work, is an artistic form of expression which falls within the freedom of art protected by Article 13 of the Charter. Also according to Art. 1 letter. c of the Geneva Convention, a so-called “reproduction piece” is an object which contains tones taken directly or indirectly from a phonogram and which embodies all or a substantial part of the tones defined in the phonogram.

Thus, if a fragment such as the present music fragment is inserted into the other sound carrier in a modified form that cannot be recognised on hearing, the phonogram producer of the original fragment cannot invoke his rights of reproduction, the ECJ ruled. It is not a “copy” of that other phonogram within the meaning of Directive 2001/29 if it does not take over all or a substantial part of it.

However, the use of that audio fragment may, depending on the circumstances of the case, also constitute a “quotation” within the meaning of Article 5(3)(d) of Directive 2001/29, taking into account Article 13 of the Charter, which would be recognisable in any event when the new work is listened to. Thus the ECJ also confirms the argumentation of the Advocate General – we reported.

This is kind of landmark decision in EU copyright law – the more as Videos and sounds can be protected as EU Trade Marks, since the new EU Trade Mark regulations are in force.

Rights of phonogram producers in the EU countries

In a further part of the questions referred for a preliminary ruling, the ECJ also dealt with possible exceptions and special regulations in the EU Member States. In accordance with Article 2(2)(b) of the Directive, Member States shall c of Directive 2001/29 provides for the exclusive right of phonogram producers, in respect of their phonograms, “to authorise or prohibit, in whole or in part, direct or indirect, temporary or permanent reproduction by any means and in any form whatsoever”. This clearly defines the exclusive reproduction right of producers of phonograms in the Union.

A Member State may not, in its national law, exclude or restrict the right of the phonogram producer under Article 2(2)(b) of the Treaty. c of Directive 2001/29, which is not provided for in Article 5 of that directive, the ECJ ruled.