“Sampling” requires the approval of the phonogram producer: new Court of Justice of the European Union (CJEU) judgement

Kraftwerk, the German music group whose sound is characterised by using minimalist and strictly electronic instrumentation and considered the undisputed father of this genre, has initiated a judicial process that has been escalated to the CJEU, the authority to which the German Supreme Court has raised several preliminary questions.

The origin of the conflict is found in the inclusion of the Nur mir musical work for approximately two seconds - through successive repetitions - of a rhythmic sequence of the Metall auf Metall title, a work for which the claimant members of Kraftwerk were not only the authors - in the case of one of them - but performers and phonogram producers. As such, they considered that such an inclusion violated their right as producer and claimed cessation of infringement, compensation for damages and delivery of all phonograms contained within the infringing title for destruction.

Under such circumstances, the German Supreme Court raised to the CJEU a total of five preliminary questions to analyse whether unauthorised insertion in a phonogram, through the “sampling” of an audio fragment extracted from another phonogram constituted a violation of the rights of its phonogram producer, all in light of the Union Law relating to copyright and neighbouring rights and the Charter of Fundamental Rights of the European Union. The process has involved the analysis of the exclusive rights of the phonogram producer, their exceptions and limitations - in particular, the right of quotation - and compatibility with the Union Law of the German law that allows an independent work to incorporate and exploit a protected work without the consent of the owners.

The CJEU judgement establishes, first, that the phonogram producers have the sole right to authorise or prohibit the full or partial reproduction of their phonograms, which a priori also contemplates the inclusion of a fragment, although brief, extracted from a phonogram in order to use it as part of a new work set within another phonogram and thereby contemplates Directives 2001/29/EC and 2006/115/EC. Nevertheless, the Court believes that such a violation in no case constitutes a copy in light of Directive 2006/115/EC since only a medium incorporating the whole or a substantial part of the sounds set in a phonogram may, by its characteristics, replace the lawful specimens thereof and therefore constitute a copy.

The CJEU also considers that the exceptions and limitations to the rights of owners established by the Union Law have attempted to seek - taking into consideration the different judicial traditions of Member States - a balance between intellectual property rights and the general interest, and have been comprehensively stipulated to ensure legal certainty and certain uniformity in the internal market. Therefore, in the opinion of the Court, it is not acceptable for a national regulation to create a new exception and allow a separate work created by the free use of a protected work to be exploited without the consent of the owners. 

In relation to the right of quotation - the use, by a user that is not its author, of a work or an extract of a work to illustrate a comment, defend an opinion or even permit intellectual debate between that work and such user’s statements - the exception of which Member States may make use, the CJEU concludes that the use of an audio sample extracted from a phonogram may, depending on the circumstances, be considered a quotation, provided that such use is for the purpose of interacting with the work in question. In contrast, the use of that sample shall not constitute a quotation when it is not possible to identify the work in question or no such interaction exists, which the Court considers to have occur in the analysed case.

Consequently, the only output for the “sampling”, technically of indubitable relevance for genres such as hip hop and rap is, according to the judgement content, that the user of the sound sample has integrated it modified into a new phonogram so that it is unrecognisable, as the request for authorisation under such circumstances would violate the necessary balance between intellectual property rights protection and a fundamental right such as the freedom of creation.