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Uncleared samples are copyright infringement however short, reckons EU’s Advocate General

By | Published on Thursday 13 December 2018

Kraftwerk

Ah, the good old “can a two second sample possibly constitute copyright infringement” debate, that never gets old does it? Now the Advocate General of the European Union’s Court Of Justice has pondered on this very topic as the incredibly long running legal battle between Kraftwerk and rapper Moses Pelham somehow still continues to go through the motions. He basically concludes that using a two second sample of a sound recording without permission does constitute copyright infringement.

Kraftwerk’s Ralf Hutter sued Pelham way back in the early 2000s over a 1990s track that the latter had made with the rapper Sabrina Setlur called ‘Nur Mir’. It used a tiny sample from Kraftwerk’s track ‘Metal On Metal’ on a loop.

The case bounced around the German courts for years. It was accepted that Pelham had indeed sampled ‘Metal On Metal’ without permission, but the question was then posed as to whether such a short uncleared sample could constitute copyright infringement under German law. In 2012, Germany’s Federal Court Of Justice found in favour of Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled, so clipping the snippet out of ‘Metal On Metal’ was just laziness.

Four years later the German Constitutional Court overturned that judgement, reckoning that the lower court hadn’t properly considered Pelham’s “artistic freedom”. The higher court reckoned that the negative impact on Kraftwerk caused by the uncleared sample probably wasn’t sufficient to outweigh the sampler’s artistic rights.

After the Constitutional Court basically bounced the matter back to the Federal Court Of Justice, a bunch of questions were subsequently sent to the EU court requesting clarification on what European law says about sampling. Which is why Advocate General Maciej Szpunar has been musing on the issue. His conclusion isn’t binding, but tends to be very influential when the EU Court Of Justice makes any rulings.

While there has been plenty of debate over the years about the copyright implications of sampling, actually there are really two debates, because the arguments may be different for recording rights versus song rights.

Basically, when you sample a two second clip of a track, you are sampling both the recording and the song contained within it. But it might be hard to argue that the two second snippet of the song can be protected by copyright in isolation. However, at the same time you could argue that the two second snippet of the recording is.

The ‘Metal On Metal’ case centres on the recording rights. In essence, in the 2012 court hearing, when one argument on the Kraftwerk side was that Pelham could have recreated the sounds he sampled, they were basically saying that there was no song copyright to infringe here, but that the separate recording copyright had been infringed by the uncleared sample.

Therefore, Szpunar’s remarks relate to the recording rights, though he does consider the distinction between the song and the track. In his response to the questions posed by the German courts, he starts by saying that “it goes without saying” that sampling a recording exploits the ‘reproduction’ control that comes with the copyright.

“Sampling (generally) involves the direct and permanent reproduction, by digital means and in digital form, of a portion or sample of a phonogram”, he goes on. “It therefore seems to be quite clear that that act amounts to an infringement of the right of the producers of the phonogram in question to authorise or prohibit such a reproduction made without their permission”.

He then considers the argument that a two second sample is just too short to enjoy copyright protection, noting that when it comes to the songs side, a few notes or words may not enjoy protection in isolation.

However, he says, this principle cannot be “applied to phonograms”. He writes: “A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself”.

“Consequently”, he continues, “although, in the case of [other creative works], it is possible to distinguish the elements which may not be protected, such as words, sounds, colours etc, from the subject-matter which may be protected in the form of the original arrangement of those elements, such a distinction is not, however, possible in the case of a phonogram”.

All of which means that even a tiny snippet of a sound recording enjoys copyright protection and therefore can’t be sampled without permission, although the chances are that “anyone may reproduce the same sound himself” without infringing any other copyrights.

Which kind of makes sense, although many of the big sample-based copyright cases have taken place in the American courts, and judges there haven’t always applied that rule consistently, ie that however tiny, an uncleared sample infringes the recording copyright. Aware of this, Szpunar stresses that US and European copyright rules are different.

American sampling cases, he says, were argued in “a radically different legal environment to that of continental Europe and EU law”. He then added that, mainly because continental European copyright systems (though not the UK system) treat sound recordings differently to things like the song copyright, “I take the view that the reasoning of the US courts cannot therefore be applied to EU law”.

Beyond the classic question about whether super short samples can be protected by copyright, Szpunar also considers a number of other matters too, including whether any copyright exceptions could apply in this case, and also the issue of “artistic freedom” that was raised by the German Constitutional Court.

On the latter point, Szpunar writes: “Artists must be particularly aware of the limits and restrictions that life imposes on creative freedom where they concern the rights and fundamental freedoms of others, in particular their right to property, including intellectual property. In such cases, the balancing of different rights and interests is a particularly complex exercise and there is rarely a ‘one size fits all’ solution”.

“That balancing exercise”, he adds, “must, in a democratic society, be undertaken first of all by the legislature, which embodies the general interest”.

But when it comes to rights under European law, he goes on, “the requirement of obtaining a licence for [sampling] does not restrict, in my opinion, the freedom of the arts to a degree that extends beyond normal market constraints, especially since those new works often generate significant revenue for their authors and producers”.

Concluding, Szpunar states 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”, and that “the exclusive right of phonogram producers … 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 thirteen of the Charter Of Fundamental Rights Of The European Union”.

We now await to see how the EU court itself responds to its German counterpart, and what impact these clarifications have on the ‘Metal On Metal’ case back in Germany.



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