No Sample for You – Advocate General Szpunar Scratches Music Sampling under EU Copyright

Since the 1970s music sampling has become a staple in the industry, where parts of songs are taken to create parts of new song, particularly popularised by the rap genre. The practice has been an open secret, where artists freely have taken parts from other songs without much by way of repercussions or issues from a copyright perspective, even though an artistic work has been potentially copied. The matter hasn't been widely litigated, but a recent case in the CJEU is set to determine the issue once and for all at least within Europe. Prior to the full CJEU decision, Advocate General Szpunar gave his consideration on the matter in late 2018.

The case of Pelham GmbH v Ralf Hütter and Florian Schneider-Esleben concerned the band Kraftwerk (a well-known German electronic music band), consisting of the claimants Mr Hütter and Schneider-Esleben. The respondents Mr Pelham and Mr Haas had allegedly electronically sampled approximately a two second rhythm sequence from the Kraftwerk song "Metall auf Metall" in their song "Nur mir". Kraftwerk alleged that this sampling infringed their copyright in their song, with the matter ultimately ending with the CJEU from the German courts.

The CJEU were asked six questions, which will be dealt with in turn below.

The first question in essence asked "…whether Article 2(c) of Directive 2001/29 should be interpreted as meaning that taking an extract of a phonogram for the purpose of using it in another phonogram (sampling) infringes the exclusive right of the producer of the first phonogram… where it is taken without the latter’s permission".

After preliminary considerations, the Advocate General addressed the first question, quickly setting out that the copying of the loop would amount to a reproduction under Article 2 of the Directive. This means that the act would be an infringement of the rights afforded by the legislation to the author. However, the rights could be limited, and potential minimal (de minimis) copying could be allowed, i.e. the copying does not pose a financial threat to the original work or its author.

The Advocate General considered that "…A phonogram is not made up of small particles that are not protectable: it is protected as an indivisible whole… a sound or a word cannot be monopolised by an author as a result of its inclusion in a work". The rights afforded to them, therefore, would only be in the entire (or substantial) part of the song, not individual notes and/or sounds. Even so, the right to reproduce the song, or parts of it, are with the author alone, even though the same sound could be created and used in isolation of that work.

The Advocate General also struggled to formulate a test for de minimis copying, as it would be difficult to draw a line, and decide whether this would be a qualitative or quantitative assessment.

Although the parties (and interested third-parties, tried to argue for the de minimis threshold, the Advocate General was not convinced, and saw the answer to the first question as "…Article 2(c) of [the] Directive must be interpreted as meaning that taking an extract of a phonogram for the purpose of using it in another phonogram (sampling) infringes the exclusive right of the producer of the first phonogram to authorise or prohibit the reproduction of his phonogram within the meaning of that provision, where it is taken without the latter’s permission".

The second question referred to the Court concerned "…whether Article 9(1)(b) of Directive 2006/115 should be interpreted as meaning that a phonogram which contains extracts transferred from another phonogram (samples) is a copy of the other phonogram within the meaning of that provision".

Eric had no interest in sampling Anna's music

This question was briefly considered by the Advocate General, who saw that the meaning of a 'copy' of a work should be interpreted as something "…which incorporates all or a substantial part of the sounds of a protected phonogram and which are intended to replace lawful copies thereof". A sample does not replace the original work, but creates a new independent work. Similarly it does not incorporate all or a substantial part of the sounds of the original work.

The Advocate General therefore set out the answer to the second question as "…Article 9(1)(b) of [the] Directive must be interpreted as meaning that a phonogram which contains extracts transferred from another phonogram (samples) is not a copy of the other phonogram within the meaning of that provision".

The third question asked whether it would be possible for Member States to preclude the application of a national law to allow for the use of works without the consent of their author under Directive 2001/29.

As the exceptions included in Article 5 of the Directive don't include permitting the use of protected works for the creation of other works, the Advocate General fairly considered that "...Article 2(c) of Directive must be interpreted as precluding the application of a provision of the national law... according to which an independent work may be created in the free use of another work without the consent of the author of the work used".

The fourth question asks whether the quotation exception under Article 5(3)(d) of Directive 2001/29 applies when a extract of a song is used in another. While typically only associated with literary works, the Advocate General did concede that it is possible it could apply to musical works as well. However, for a copy to be regarded as quotation, it needs to fulfill two conditions: (i) the quotation must be ‘for purposes such as criticism or review’; and (ii) the extract quoted must be incorporated in the quoting work as such or, in any event, without modification.

Sampling clearly fails both conditions, as the use of the extract is not for criticism or review, or used without modification. The Advocate General clearly therefore answered the question in the negative.

The fifth question concerned the latitude afforded to Member States in transposing the relevant copyright directives into their respective national law. After some degree of discussion, the Advocate General answer the fifth question as "...Member States are required to ensure the protection, in their domestic law, of the exclusive rights set out in Articles 2 to 4 of Directive 2001/29, in so far as those rights can be limited only in the application of the exceptions and limitations listed exhaustively in Article 5 of that directive. Member States are nevertheless free as to the choice of form and methods which they consider appropriate to implement in order to comply with that obligation".

Finally, the Advocate General took on the sixth question, which asked "...how the fundamental rights set out in the Charter are to be taken into account when interpreting the scope of the exclusive rights of phonogram producers" under the above Directives. In effect it is asking whether there exists primacy of the freedom of the arts over the exclusive right of reproduction of phonogram producers.

After some discussion of the issue in relation to both German and EU law, the Advocate General considered that "...the exclusive right of phonogram producers under Article 2(c) of Directive 2001/29 to authorise or prohibit reproduction, in part, of their phonogram in the event of its use for sampling purposes is not contrary to the freedom of the arts as enshrined in Article 13 of the Charter.".

The case is a very interesting one, and the ultimate decision of the CJEU might have huge implications for the music industry, particularly genres that heavily rely on the use of samples in the production of new music. It remains to be seen what the CJEU say later this year, but this writer will, for one, wait for the beat drop with anticipation.