[co-author: Nikolaus Von Bargen]
German courts have been dealing with the Metall auf Metall [song by the German band Kraftwerk] case for two decades. Recently, the CJEU, too, has had to deal with the case and ruled by judgment of 29 July 2019 (C-476/17) that unless the phonogram producer consents, sampling constitutes an infringement of his rights. However, the CJEU argued, if, by modifying the sample, it can be ruled out that the content is recognizable, there is no infringement of rights.
Background
The Plaintiffs are members of the band Kraftwerk, which, in 1977, released the album “Trans Europa Express”, which includes the title “Metall auf Metall”. The Defendants are the producers Moses Pelham, founder and managing director of the music label Pelham Power Productions (3P), and Martin Haas, who produced the album “Die neue S-Klasse” by rapper Sabrina Setlur, which was released in 1997. The album includes the track “Nur mir”, to which approximately two seconds of a rhythm sequence from Kraftwerk’s “Metall auf Metall” were added (“sampling”), but with the song’s speed reduced by 5% and played in a continuous loop (“loop”). The producers did not obtain prior consent to use this audio fragment, nor was a licence taken.
Course of procedure
The Plaintiffs were, and are, of the opinion, that their rights as phonogram producer pursuant to sec. 85 para. 1 of the German Copyright Act (Urheberrechtsgesetz) are being infringed by the sampling. In 1999, they brought an action before the District Court (Landgericht) of Hamburg, which upheld the action (judgment of 8 October 2004, 308 O 90/99). The Defendants’ appeal against the judgment to the Hamburg Higher District Court (Oberlandesgericht) was unsuccessful (judgment of 7 June 2006, 5 U 48/05). While the German Federal Court of Justice (Bundesgerichtshof) referred the case back to the Higher District Court, it ultimately concurred with the preceding instances and noted that for the exclusive right of the phonogram producer to be infringed it is sufficient that very short audio snatches are taken from a phonogram (judgment of 20 November 2008, I ZR 112/06 – Metall auf Metall I). Following another “round” through the instances (Hamburg Higher District Court, judgment of 17 August 2011, 5 U 48/05; German Federal Court of Justice, judgment of 13 December 2012, I ZR 182/11 – Metall auf Metall II), the Defendants successfully filed a constitutional complaint. In this connection, the German Federal Constitutional Court (Bundesverfassungsgericht) noted that the right holders’ exploitation interests might have to take a backseat to freedom of the arts and referred the case back to the German Federal Court of Justice (decision of 9 January 2016, 1 BvR 1585/13, see our contribution).
After the German Federal Constitutional Court hinted at the possibility that the case might have to be referred to the CJEU, due to questions relating to EU law that are relevant to the decision the German Federal Court of Justice eventually submitted the case to the CJEU for a preliminary ruling (decision of 1 June 2017, I ZR 115/16 – Metall auf Metall III, see our German language contribution). The German Federal Court of Justice wanted to know, firstly, whether the insertion, by way of sampling, of an audio fragment belonging to the phonogram producer into another phonogram without his consent constitutes an encroachment upon the phonogram producer’s rights according to EU copyright and related rights as well as according to the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union. Secondly, the German Federal Court of Justice sought to clarify the question of whether the German legal provisions, according to which an independent work created in the free use of a protected work may generally be published and exploited without the consent of the right holders, is reconcilable with EU law. Lastly, the German Federal Court of Justice asked whether sampling might fall under the exception made for quotations, which releases the user of the obligation to obtain the consent of the phonogram producer to use the protected phonogram.
Judgment
The CJEU starts off by pointing out that phonogram producers have the exclusive right to permit or prohibit the reproduction of their phonograms in full or in part. The CJEU found that if a third party reproduces an audio fragment – no matter how short – that was taken from a phonogram, this therefore constitutes a partial reproduction of said phonogram and falls under the exclusive right of the phonogram producer. According to the CJEU, however, if a third party exercising their freedom of the arts takes a sequence from a phonogram in order to insert it into a new work in modified form and in a form that renders it unrecognizable to listeners, this does not constitute reproduction. The court held that to regard this as an act of reproduction requiring consent runs counter to the requirement of striking a fair balance between, on the one hand, the interests of the holders of copyright and related rights in the protection of their intellectual property guaranteed by the Charter and, on the other hand, the protection of interests and fundamental rights of users of protected subject matter, including artistic freedom, which is likewise guaranteed by the Charter, as well as of the public interest.
With respect to the German Federal Court of Justice’s question regarding the reconcilability of the German legal provisions with the law of the European Union, the CJEU stated that the exceptions and limitations provided for by European Union law are exhaustively stipulated therein. The CJEU held that, therefore, the German legal provisions providing for an exception or limitation, according to which an independent work created in the free use of a protected work of another person may generally be published and exploited without the consent of the author of the work used, are not reconcilable with EU law.
The question of whether sampling could fall under the exception for quotations was answered by the CJEU to the effect that the use of an audio fragment that was taken from a phonogram and makes it possible to recognize the work from which it was taken can, in certain circumstances, be a quotation; this must be considered in particular in cases where a work is used with the intention of entering into ‘dialogue’. The CJEU held that, if the work is unrecognizable, the use of the fragment is not a quotation.
Comment
As already hinted at in our contribution of 12 December 2018 (German language), the Metall auf Metall case is approaching the final stretch. In a departure from its regular practice, the CJEU largely does not concur with the statements of Advocate General Maciej Szpunar in his Opinion.
The Advocate General had held that the use of a sample without the consent of the phonogram producer is generally impermissible. According to the Advocate General, artists cannot justify sampling on the basis of the right of free use or the right of quotation. He argued that, while freedom of the arts was generally capable of restricting the proprietary rights of phonogram producers, the right to artistic freedom is not unreasonably prejudiced if an artist must obtain a licence to use a sequence.
The CJEU chose to take a different route, focussing in particular on the recognizability of the sequence in the individual case. According to the CJEU, if a user exercising their freedom of the arts takes a sequence from a phonogram in order to insert it into a new work in modified form and in a form that renders it unrecognizable to listeners, such use does not require the consent of the phonogram producer, as it does not constitute reproduction to begin with. This means that the CJEU is balancing the fundamental rights at the factual level already. As the German Federal Constitutional Court before it, the CJEU emphasizes the significance of freedom of the arts and stresses in this respect the requirement of a fair balance in relation to the right to intellectual property.
The conclusive assessment as to whether the two-second sample in the underlying case is a recognizable audio fragment and thus a reproduction requiring consent is now reserved for the German Federal Court of Justice in its decision on “Metall auf Metall IV“.
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