Advocate General Szpunar of the Court of Justice of the European Union, in his Opinion delivered on 12 December 2018 in Case C-476/17, has proposed that taking an extract from a phonogram for the purpose of using it as an element of a new composition in another phonogram (commonly known as the "sampling" technique) should be regarded as an infringement of the exclusive right of the producer of the first phonogram requiring his authorisation.
The case in which the Advocate General has delivered his Opinion is the result of an extensive and complex procedure before the German Courts, confronting Mr. Ralf Hütter and Mr. Florian Schneider-Esleben, members of the electronic music group Kraftwerk, against Pelham GmbH, Mr. Moses Pelham and Mr. Martin Hass, producer and authors, respectively, of the song entitled Nur mir.
The conflict between these two parties started when the producer and the authors of the above indicated song, electronically sampled approximately two seconds of a rhythm sequence from the song Metall auf Metall, published in 1977 by the Kraftwerk group and incorporated it, as a continuous loop, in the song Nur mir, without obtaining any authorisation to do so. For Mr. Hütter and Mr. Schneider-Esleben, the inclusion of a rhythmic sequence of their 1977 title in the song Nur mir constitutes an infringement of the related right they hold as producers of the phonogram in question.
In the context of this dispute, the Bundesgerichtshof (Federal Court of Justice, Germany) refers a number of questions to the Court of Justice for a preliminary ruling, the purpose of which is essentially to determine whether the use of a tiny part of a phonogram for looping into another phonogram constitutes an infringement of the exclusive right of reproduction of the producer of the first phonogram, resulting from Article 2(c) of Directive 2001/29/EC, and whether such use could be covered by one of the exceptions or limitations to those exclusive rights provided for in Article 5 of that Directive, in particular the quotation exception or the caricature, parody or pastiche exception. It is also analysed whether the general exception to the rights of reproduction and distribution of the phonogram producer provided for in Article 24(1) of the German Copyright Law (UrhG), which allows an independent work created from the free use of a phonogram to be exploited without the consent of the owner of that phonogram, complies with or exceeds the framework of exceptions and limitations to the exclusive rights provided for in Article 5(2) and (3) of the Directive.
First, for Advocate General Szpunar, it is obvious that the act of inserting an extract of the rhythmic sequence of a phonogram into the phonogram of another work constitutes an act of reproduction within the meaning of Article 2 of the Directive. Despite the brevity of the rhythmic sequence reproduced, it is recalled that that article also deals with partial reproductions of a protected work, without it being possible to apply by analogy the case-law of the Court of Justice concerning the protection of extracts of works by copyright or to establish any de minimis threshold in the case of extracts of phonograms.
According to the case-law of the Court of Justice, words, sounds, colours, etc. taken in isolation do not qualify for copyright protection. Only their original arrangement is protected as an intellectual creation.
The Advocate General makes an important difference in this respect. While originality is required in copyright and, therefore, only those extracts (words, sounds, colours) of a work which are arranged in an original way are eligible for protection, the phonogram is protected as a whole by the economic and organisational investment it entails. Thus, any extract of that phonogram that is used to be incorporated into another phonogram, even if it is a rhythmic sequence of two seconds, will be an interference with the exclusive right of reproduction of the producer of the first phonogram, regardless of whether that extract can be considered original or not.
On the other hand, for the Advocate General, the sampling technique does not meet the necessary requirements for the quotation exception nor the parody, caricature or pastiche exception to apply to it, given that it is neither possible to distinguish the extract incorporated into the new phonogram as an alien element, nor does its incorporation presuppose an interaction with the work used or its author.
Finally, it is important to note that, for the Advocate General, the exception provided for in Article 24(1) UrhG, which would allow a use such as that made by the phonograms producer company Pelham GmbH and Mr. Moses Pelham and Mr. Martin Hass, exceeds the framework of exceptions and limitations of the exclusive rights provided for in Article 5(2) and (3) of the Directive, which do not contain any general exception allowing the use of a work by another person for the purpose of creating a new work.
However, even if the looping of a two-second rhythm sequence of a phonogram may be an act of reproduction which is not covered by any exception or limitation and which requires the authorisation of phonogram producers, as is apparent from paragraph 30 of its conclusions, this will only be the case to the extent that the reproduction of that rhythm sequence in the second phonogram is produced by its extraction from the first phonogram, but not if the same rhythm sequence is reproduced by an alternative means not involving the first phonogram.