This blog discussed the issues of balancing the freedom of expression in the early part of this year (with more on news reporting at the CJEU here), and the issue has still lingered in the backlog of cases faced by the CJEU. The balance between protecting works, while affording the ability to review and use those works for specific , is a difficult one to strike, but one that the courts often have to face. Following an Advocate General's opinion in January this year, the CJEU were now tasked with clarifying this issue, and handed down their decision not too long ago.
As a very brief primer, the case of Funke Medien NRW GmbH v Bundesrepublik Deutschland concerned the publication of confidential military reports by Funken online by the daily newspaper Westdeutsche Allgemeine Zeitung (having obtained them through unknown means). The reports detailed the deployment of the German military abroad, and various developments at the locations. Due to the sensitive nature of the reports, the Republic of Germany took Funken to court for copyright infringement, with the matter ultimately ending up with the CJEU.
The referring court asked the CJEU three questions, the first of which asked "…whether Article 2(a) and Article 3(1) of Directive 2001/29 first, and Article 5(3)(c), second case, and (d) of [the] Directive… second, must be interpreted as constituting measures of full harmonisation".
The Court considered the matter very extensively in its judgment, concluding that only Articles 2 and 3 of the Directive constituted measures of full harmonization. Without getting too much into the depths of this question, the matter revolved around the differences in the provisions in terms of wording, where Articles 2 and 3 were unequivocal in their remit, while Article 5 left some room for Member State specific implementation.
In short, the Court answered the question as "…Article 2(a) and Article 3(1) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain. Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as not constituting measures of full harmonisation of the scope of the relevant exceptions or limitations".
The Court then jumped to the third question, which asked "…whether freedom of information and freedom of the press, enshrined in Article 11 of the Charter [of Fundamental Rights of the European Union], are capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to, respectively, in Article 2(a) and Article 3(1) of that directive".
To kick things off, the Court noted that the exceptions in Article 5 are exhaustive, but those will need to be balanced with the interests of the rightsholder as well. The balancing is required through the transposition of the exceptions into national law. The Court did mention that "…the exceptions and limitations provided for in Article 5(3)(c)… (d)… are specifically aimed at favouring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press… over the interest of the author in being able to prevent the use of his or her work, whilst ensuring that the author has the right, in principle, to have his or her name indicated". The use by users, however, cannot interfere with the author's normal use of the work.
Following this the Court determined that "…freedom of information and freedom of the press, enshrined in Article 11 of the Charter, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2(a) and Article 3(1) of that directive respectively".
The Court moved onto the second question, which asked "…whether, in striking the balance which it is incumbent on a national court to undertake between the exclusive rights of the author referred to in Article 2(a) and Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter derogating from the former, a national court may depart from a restrictive interpretation of the latter provisions in favour of an interpretation which takes full account of the need to respect freedom of expression and freedom of information, enshrined in Article 11 of the Charter". To put into other terms, can national courts go with a less restrictive interpretation of the rights given to users over protected works, particularly in the light of Funken not adding a summary of the document to the article (but merely linked to it).
When Member States transpose EU legislation into national legislation, this has to be done without conflict with the EU laws themselves, including through the interpretation used to devise national legislation. This means that any derogation from the provisions would have to be interpreted strictly. With regards to Article 5, the exceptions and limitations in it have to be protected in terms of their efficacy.
The Court continued that the Charter does expressly protect intellectual property rights, but those rights are by no means superior to everything, and can be broken given the appropriate exception. This means that both the rights held by the rightsholders, and the ability for users to use the materials for legitimate, fair purposes, have to be appropriately balanced.
The Court saw that Funken's use could fall under the exception of news reporting, due to the structure it was presented in, the notes added in and the further links given within the article. The specifics of which would have to be determined by the referring court in the end.
The answer to the second question therefore is "…that, in striking the balance which is incumbent on a national court between the exclusive rights of the author… on the one hand… the rights of the users of protected subject matter… the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter".
The case follows the other news reporting related cases that have come before it through the CJEU in recent times, and doesn't provide many surprises. News reporting would have to adhere to the Court's guidance on the matter, but it seems that similar use to that of Funken's would be covered by the exception under Article 5, to the potential chagrin of many authors that might not want this.
27 August, 2019
22 August, 2019
That's News to Me - CJEU Decides on Whether Copying for the Purpose of Reporting of Current Events Infringes Copyright
News reporting is an important part of society and one of the best ways to keep a population informed and up-to-date on current events. Many consider the preservation of news reporting, particularly an unfettered reporting, incredibly important. Quoting and copying of materials for the news isn't always as straightforward as that, with many instances amounting to copyright infringement. With that in mind, what are the limits to copying for the purposes of reporting current events? Luckily the CJEU took this question on and handed down its judgment only a few weeks ago.
The case of Spiegel Online GmbH v Volker Beck concerned a manuscript written by a German politician, Volker Beck. The manuscript, which dealt with criminal policy relating to sexual offences committed against minors, was originally published in 1988 under a pseudonym. At the time the manuscript's title, along with very small parts of its contents, were changed by the publisher, to Mr Volker's dismay. The manuscript was discovered 25 years later, which was put to Mr Volker during his then campaign for the German parliament. During this period Mr Volker provided some newspaper editors with the full manuscript to show it had been edited (but didn't give consent to the editors for publication), and published it on his website distancing himself from it. Spiegel Online, however, published an article contesting Mr Volker's stance, including links to the full manuscript with the article. Mr Volker subsequently sued the paper for copyright infringement, with the matter ending up with the CJEU sometime after.
The referring court asked the CJEU six questions, the first of which asking "…whether Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation".
The CJEU dealt with the background of the question quite extensively, but decided that the Article does not constituting measures of full harmonization. As the transposition of legislation into national law is dealt with on a case-by-case basis, the Court saw that there was a high degree of discretion allowed for Member States, and therefore the provision isn't looking to harmonize EU law in a strict fashion across the board.
The Court then moved onto the third question, which asked "…whether freedom of information and freedom of the press, enshrined in Article 11 of the Charter [of Fundamental Rights of the European Union], are capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public". In other words, would the freedom of information go beyond the express exceptions already provided for in the legislation.
At the outset the Court noted that the exceptions contained in Article 5 are exhaustive, and seek to strike a balance on interests between protecting works, while allowing for users to access information where and when needed (especially regarding the freedom of expression and information). They continued that Article 5 is specifically aims at favoring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press over the interest of the author in being able to prevent the use of his or her work. Even so, allowing for an exception beyond the above remits would potentially endanger the effectiveness of the harmonization of copyright in the EU and legal certainty on its factual remit.
The CJEU then determined that "…freedom of information and freedom of the press, enshrined in… the Charter, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public".
Having dealt with the third question, the Court turned to the second question, which asked "…whether, in striking the balance… between the exclusive rights of the author referred to in Article 2(a) and Article 3(1) of Directive 2001/29… and… the rights of the users of protected subject matter referred to in Article 5(3)(c)… and (d)… a national court may depart from a restrictive interpretation of the latter provisions in favour of an interpretation which takes full account of the need to respect freedom of expression and freedom of information".
According to the Court, the exceptions provided for in Article 5 confer specific rights to users of protected works, which should be given a broad interpretation, and the effectiveness of the provision needs to be safeguarded. Even though the Charter does expressly protect intellectual property, the rights given to rightsholders are not absolute. When striking a balance between the rights given to citizens by the Charter, courts have to consider the context in which that use occurs in the light of copyright protection. The Court considered that, in answering the question "…a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter".
The Court followed this with the fourth question, which asked "…whether Article 5(3)(c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events".
In answering the question, the Court noted that the exceptions in Article 5 don't require any authorization from the rightsholder prior to the use of a protected work. In considering the meaning of 'in connection with the reporting of current events', the Court saw that it meant "…the action of ‘reporting’… must be understood as that of providing information on a current event", but does not require the analysis of an event in detail. The reporting must also relate to 'current events', which is "…an event that, at the time at which it is reported, is of informatory interest to the public". The author of the protected work would also have to be attributed in the news reports.
The Court determined that national rules restricting the application of the exceptions would be precluded by EU law.
That was followed by the fifth question, which asked "…whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’… covers a reference made by means of a hyperlink to a file which can be downloaded independently".
The Court commenced by looking at the meaning of 'quotation' under the provision, which is considered to be "…the use, by a user other than the copyright holder, of a work or, more generally, of an extract from a work for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user". A direct and close link needs to be established between the quoted work and the author's own reflections. As such the quotation doesn't need to be inextricably integrated, by way of insertions or reproductions in footnotes for example, into the subject matter citing it, which allows for a hyperlink to be a quotation for the purposes of the provision.
The Court therefore answered the question as "…the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently".
Finally, the Court turned to the sixth and final question, which asked "…whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was published previously with the author’s consent".
The Court noted that the exception for quotation only applies to works that already been lawfully made available to the public. If a work has been made lawfully available, it has been made available with the author's authorization, allowing for quotation. Mr Beck had clearly done so by publishing the manuscript on his website, even if he disassociated himself from the work (with the statement needing to be included with any quotation).
The Court therefore set out that "…Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation".
The case is yet another important update to the world of quotation, and how copyright protected works can be used in news reporting. The limits of what would amount to quotation can be tricky, and therefore a serious of cases from the CJEU dealing with the subject matter is a very welcome addition. Many news outlets will welcome this change, but will have to make sure to abide by it so as to not infringe copyright in any works.
The case of Spiegel Online GmbH v Volker Beck concerned a manuscript written by a German politician, Volker Beck. The manuscript, which dealt with criminal policy relating to sexual offences committed against minors, was originally published in 1988 under a pseudonym. At the time the manuscript's title, along with very small parts of its contents, were changed by the publisher, to Mr Volker's dismay. The manuscript was discovered 25 years later, which was put to Mr Volker during his then campaign for the German parliament. During this period Mr Volker provided some newspaper editors with the full manuscript to show it had been edited (but didn't give consent to the editors for publication), and published it on his website distancing himself from it. Spiegel Online, however, published an article contesting Mr Volker's stance, including links to the full manuscript with the article. Mr Volker subsequently sued the paper for copyright infringement, with the matter ending up with the CJEU sometime after.
The referring court asked the CJEU six questions, the first of which asking "…whether Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation".
The CJEU dealt with the background of the question quite extensively, but decided that the Article does not constituting measures of full harmonization. As the transposition of legislation into national law is dealt with on a case-by-case basis, the Court saw that there was a high degree of discretion allowed for Member States, and therefore the provision isn't looking to harmonize EU law in a strict fashion across the board.
The Court then moved onto the third question, which asked "…whether freedom of information and freedom of the press, enshrined in Article 11 of the Charter [of Fundamental Rights of the European Union], are capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public". In other words, would the freedom of information go beyond the express exceptions already provided for in the legislation.
At the outset the Court noted that the exceptions contained in Article 5 are exhaustive, and seek to strike a balance on interests between protecting works, while allowing for users to access information where and when needed (especially regarding the freedom of expression and information). They continued that Article 5 is specifically aims at favoring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press over the interest of the author in being able to prevent the use of his or her work. Even so, allowing for an exception beyond the above remits would potentially endanger the effectiveness of the harmonization of copyright in the EU and legal certainty on its factual remit.
The CJEU then determined that "…freedom of information and freedom of the press, enshrined in… the Charter, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public".
Having dealt with the third question, the Court turned to the second question, which asked "…whether, in striking the balance… between the exclusive rights of the author referred to in Article 2(a) and Article 3(1) of Directive 2001/29… and… the rights of the users of protected subject matter referred to in Article 5(3)(c)… and (d)… a national court may depart from a restrictive interpretation of the latter provisions in favour of an interpretation which takes full account of the need to respect freedom of expression and freedom of information".
According to the Court, the exceptions provided for in Article 5 confer specific rights to users of protected works, which should be given a broad interpretation, and the effectiveness of the provision needs to be safeguarded. Even though the Charter does expressly protect intellectual property, the rights given to rightsholders are not absolute. When striking a balance between the rights given to citizens by the Charter, courts have to consider the context in which that use occurs in the light of copyright protection. The Court considered that, in answering the question "…a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter".
The Court followed this with the fourth question, which asked "…whether Article 5(3)(c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events".
In answering the question, the Court noted that the exceptions in Article 5 don't require any authorization from the rightsholder prior to the use of a protected work. In considering the meaning of 'in connection with the reporting of current events', the Court saw that it meant "…the action of ‘reporting’… must be understood as that of providing information on a current event", but does not require the analysis of an event in detail. The reporting must also relate to 'current events', which is "…an event that, at the time at which it is reported, is of informatory interest to the public". The author of the protected work would also have to be attributed in the news reports.
The Court determined that national rules restricting the application of the exceptions would be precluded by EU law.
That was followed by the fifth question, which asked "…whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’… covers a reference made by means of a hyperlink to a file which can be downloaded independently".
The Court commenced by looking at the meaning of 'quotation' under the provision, which is considered to be "…the use, by a user other than the copyright holder, of a work or, more generally, of an extract from a work for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user". A direct and close link needs to be established between the quoted work and the author's own reflections. As such the quotation doesn't need to be inextricably integrated, by way of insertions or reproductions in footnotes for example, into the subject matter citing it, which allows for a hyperlink to be a quotation for the purposes of the provision.
The Court therefore answered the question as "…the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently".
Finally, the Court turned to the sixth and final question, which asked "…whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was published previously with the author’s consent".
The Court noted that the exception for quotation only applies to works that already been lawfully made available to the public. If a work has been made lawfully available, it has been made available with the author's authorization, allowing for quotation. Mr Beck had clearly done so by publishing the manuscript on his website, even if he disassociated himself from the work (with the statement needing to be included with any quotation).
The Court therefore set out that "…Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation".
The case is yet another important update to the world of quotation, and how copyright protected works can be used in news reporting. The limits of what would amount to quotation can be tricky, and therefore a serious of cases from the CJEU dealing with the subject matter is a very welcome addition. Many news outlets will welcome this change, but will have to make sure to abide by it so as to not infringe copyright in any works.
13 August, 2019
Just a Little Taste - The CJEU Decides on Whether Music Sampling Infringes Copyright
Having discussed the recent opinion by Advocate General Szpunar in relation to copyright and sampling, the CJEU's decision has been very hotly anticipated, particularly by the music industry. Sampling has become incredibly common in the creation and production of music, and so the potential curtailing of sampling by the CJEU could pose a big problem to artists, producers and labels. Luckily (or unluckily) the CJEU has finally handed down its judgment very recently.
As a short primer, the case of Pelham GmbH v Ralf Hütter and Florian Schneider‑Esleben concerned the song "Metall auf Metall" created by the band Kraftwerk, which comprises of the respondents Hütter and Schneider‑Esleben. The song was sampled in another song called "Nur Mir", which was produced by Pelham in the late 1990s. Kraftwerk allege that Pelham sampled a two-second rhythm sequence from their song, and used it as a continuous loop in "Nur Mir", therefore infringing their copyright. Pelham contested the infringement allegation, and the case then ended up in the CJEU some years later.
The referring court asked the CJEU six questions, which the Court dealt with (mainly) in turn.
The first and sixth questions were dealt with by the CJEU together, which essentially asked "...whether Article 2(c) of Directive 2001/29 must, in the light of the Charter [of Fundamental Rights of the European Union], be interpreted as meaning that the exclusive right granted to a phonogram producer to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram".
The Court opened with setting the scene, in that the copying of a sound sample, even if very short, must be regarded as a reproduction ‘in part’ of that phonogram within the meaning of the Article. Even so, if a user is exercising their freedom of the arts to create a new, distinguishable phonogram work, that particular use wouldn't be classed as a 'reproduction' under the Article. The Court noted that a balance has to be struck between the rights afforded by copyright, and the rights under the Charter.
Having considered the questions, the Court determined that "…Article 2(c)… must, in the light of the Charter, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him or her to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear". In short, an artist would have to utilize a short clip of music in more ways than simply copying it in and the work has to be unrecognizable when compared to the original.
The Court then moved onto the second question, which asked "…whether Article 9(1)(b) of Directive 2006/115 must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram constitutes a ‘copy’, within the meaning of that provision, of that phonogram". The Article affords the owner of the rights in a phonogram the right to distribute copies of the work.
Having discussed the legislative backdrop of the provision quite extensively, the Court considered that samples transferred from another phonogram would be a 'copy' under the provision, as they are a 'duplicate' of the part of the work, since the samples contain sounds taken directly or indirectly from a phonogram.
The Court then considered the third question, which asked "…whether a Member State may, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of Directive 2001/29" – or in other words, can additional exceptions be provided to the rights afforded to rightsholders in relation to phonograms.
The matter yet again circled around the balancing of interests in terms of the rights in works, and exceptions to those rights allowing for the use of works in specific circumstances (so long as it doesn't conflict with the normal exploitation of a work). The Court answered the question in the negative, considering that Member States cannot lay down additional exceptions outside of Article 5.
The fourth question concerned "…whether Article 5(3)(d) of [Directive 2001/29] must be interpreted as meaning that the concept of ‘quotations'… extends to a situation in which it is not possible to identify the work concerned by the quotation in question".
The Court first focussed on the requirements for quotation, which has to be made "in accordance with fair practice, and to the extent required by the specific purpose", meaning you can't simply copy a work and claim it as a quotation of that work if it exceeds the requirements and purpose of a given quotation. Also, the Court noted that the meaning of 'quotation' is the use of a copyright protected work to "….illustrat[e] an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user", which is typically done through a 'dialogue' with that work.
A key consideration on quotation is that the work needs to be identifiable, which, in sampling, might not be as easy. Without the identification of the sample, it isn't strictly possible to have a 'dialogue' with the work as a part of the quotation. The Court therefore set out that "…the concept of ‘quotations’… does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question". It is a case-by-case question, in terms of sampling, when the copying can be considered as a quotation within the provision.
Finally, the Court dealt with the fifth question, which concerned "…whether Article 2(c) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation".
The Court emphasised that EU law takes precedent over national law, even if it concerns a Member State's constitution, and any national measures shouldn't undermine the effectiveness of the EU in its territory. That also means that EU legislation would have to be transposed into national legislation irrespective of their discretion. The Court therefore concluded that "…Article 2(c)… must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law".
The decision is a big one, and potentially is a big blow to the music industry, but has shown more clarity in the area of quotation. The courts will undoubtedly grapple with this decision in the coming years, particularly due to the nature of whether a sample can be recognized within a different song where it is copied. This writer agrees with the Court, but will wait to see whether, or if at all, the decision will have an impact on the music industry.
As a short primer, the case of Pelham GmbH v Ralf Hütter and Florian Schneider‑Esleben concerned the song "Metall auf Metall" created by the band Kraftwerk, which comprises of the respondents Hütter and Schneider‑Esleben. The song was sampled in another song called "Nur Mir", which was produced by Pelham in the late 1990s. Kraftwerk allege that Pelham sampled a two-second rhythm sequence from their song, and used it as a continuous loop in "Nur Mir", therefore infringing their copyright. Pelham contested the infringement allegation, and the case then ended up in the CJEU some years later.
The referring court asked the CJEU six questions, which the Court dealt with (mainly) in turn.
The first and sixth questions were dealt with by the CJEU together, which essentially asked "...whether Article 2(c) of Directive 2001/29 must, in the light of the Charter [of Fundamental Rights of the European Union], be interpreted as meaning that the exclusive right granted to a phonogram producer to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram".
The Court opened with setting the scene, in that the copying of a sound sample, even if very short, must be regarded as a reproduction ‘in part’ of that phonogram within the meaning of the Article. Even so, if a user is exercising their freedom of the arts to create a new, distinguishable phonogram work, that particular use wouldn't be classed as a 'reproduction' under the Article. The Court noted that a balance has to be struck between the rights afforded by copyright, and the rights under the Charter.
Having considered the questions, the Court determined that "…Article 2(c)… must, in the light of the Charter, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him or her to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear". In short, an artist would have to utilize a short clip of music in more ways than simply copying it in and the work has to be unrecognizable when compared to the original.
The Court then moved onto the second question, which asked "…whether Article 9(1)(b) of Directive 2006/115 must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram constitutes a ‘copy’, within the meaning of that provision, of that phonogram". The Article affords the owner of the rights in a phonogram the right to distribute copies of the work.
Having discussed the legislative backdrop of the provision quite extensively, the Court considered that samples transferred from another phonogram would be a 'copy' under the provision, as they are a 'duplicate' of the part of the work, since the samples contain sounds taken directly or indirectly from a phonogram.
The Court then considered the third question, which asked "…whether a Member State may, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of Directive 2001/29" – or in other words, can additional exceptions be provided to the rights afforded to rightsholders in relation to phonograms.
The matter yet again circled around the balancing of interests in terms of the rights in works, and exceptions to those rights allowing for the use of works in specific circumstances (so long as it doesn't conflict with the normal exploitation of a work). The Court answered the question in the negative, considering that Member States cannot lay down additional exceptions outside of Article 5.
The fourth question concerned "…whether Article 5(3)(d) of [Directive 2001/29] must be interpreted as meaning that the concept of ‘quotations'… extends to a situation in which it is not possible to identify the work concerned by the quotation in question".
The Court first focussed on the requirements for quotation, which has to be made "in accordance with fair practice, and to the extent required by the specific purpose", meaning you can't simply copy a work and claim it as a quotation of that work if it exceeds the requirements and purpose of a given quotation. Also, the Court noted that the meaning of 'quotation' is the use of a copyright protected work to "….illustrat[e] an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user", which is typically done through a 'dialogue' with that work.
A key consideration on quotation is that the work needs to be identifiable, which, in sampling, might not be as easy. Without the identification of the sample, it isn't strictly possible to have a 'dialogue' with the work as a part of the quotation. The Court therefore set out that "…the concept of ‘quotations’… does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question". It is a case-by-case question, in terms of sampling, when the copying can be considered as a quotation within the provision.
Finally, the Court dealt with the fifth question, which concerned "…whether Article 2(c) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation".
The Court emphasised that EU law takes precedent over national law, even if it concerns a Member State's constitution, and any national measures shouldn't undermine the effectiveness of the EU in its territory. That also means that EU legislation would have to be transposed into national legislation irrespective of their discretion. The Court therefore concluded that "…Article 2(c)… must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law".
The decision is a big one, and potentially is a big blow to the music industry, but has shown more clarity in the area of quotation. The courts will undoubtedly grapple with this decision in the coming years, particularly due to the nature of whether a sample can be recognized within a different song where it is copied. This writer agrees with the Court, but will wait to see whether, or if at all, the decision will have an impact on the music industry.
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