CJEU raises the bar for sampling without a licence

Sampling, i.e. the use of individual sequences from existing pieces of music as part of a new work, is widespread. It is an essential element in hip hop and electronic music. In practice, however, very few producers seek a licence from the author or right holder of the original recording. Sampling is seen by many as its own culture, where creativity lies in the creation of new musical work consisting of a number of short, partly changed or alienated elements, so that obtaining all rights for each individual sample is often out of the question for financial or practical reasons.

In a landmark ruling, the CJEU now dealt with the question of the extent to which the practice of sampling is permissible even without obtaining a licence. The current judgement of 29.7.2019 (C-476/17) is preceded by 15 years of litigation between members of the German electro band Kraftwerk and musician and producer Moses Pelham. As the right holders of the music title “Metall auf Metall”, Kraftwerk sued Pelham already in 2004 because he, when producing Sabrina Setlur’s piece “Nur mir”, took a sequence of about 2 seconds from Kraftwerk’s piece and used it as the underlying beat. He did so without obtaining a license from Kraftwerk or naming them as authors.

Duration of sampled recording irrelevant

A common misconception is that there is a quantitative limit of about 5 seconds or 5 bars of music up to which a sample may be used without consent of the rights holder. This assumption was already wrong under to the previous legal situation. In fact, according to Austrian copyright law, it was primarily a matter of whether enough of the original work was taken that one could speak of a “copy”, or whether the original work served only as an inspiration. If in comparison to a new independent work a used original almost faded to the background, the new work was regarded as a free adaptation that did not require the consent of the first author.

This was also applied in the case of Kraftwerk against Pelham: The German Federal Court of Justice qualified[1] the sample as an independent work with sufficient distance to the original work. The German courts thus regarded it as a free adaptation – taking into account the fundamental right of the freedom of artistic expression and following largely the same principles as previous Austrian law. However, the CJEU has now put a stop to this exception. According to the CJEU, such national exceptions are not permissible. The “barriers” of copyright law are harmonised and thus finally regulated by EU legislation. Exceptions, such as the free adaption right under the criterion of “fading to the background” of the original works in comparison to the new work, are no longer permissible. Consequently, this exception will no longer apply in Austria.

Recognisability is the new criterion

Instead, the CJEU is creating a new test for the entirety of copyright law: For the question of permissible sampling – as for any other partial use of a work for inclusion in a new work, e.g. photo or video collages – the only question that remains is whether the original work is still recognisable. Only if, “the sample taken from a phonogram [is modified] to such a degree that that sample is unrecognisable to the ear in that new work” there is no reproduction (CJEU para 36).

But there is a great practical difference between fading and recognisability: In a mosaic of many individual pictures, for example, the individual picture certainly fades to the background in view of the new, independent work; the individual pictures, however, remain recognizable. The same will apply to many music samples. In the “Metall auf Metall” proceedings, the case must now be decided by the German courts against the background of the CJEU ruling. Since the rhythm sequence used has not been significantly changed, everything indicates that there will be a finding for recognisability, which would mean that Pelham would ultimately lose.

Apart from obtaining a license or a change to unrecognisability, the CJEU left only one door open in order to obtain a legal sample: The exception for quotations also known in Austrian law. According to the Court, it should be possible to quote an artistic work if this creates a “dialogue” with the original work. The national courts will have to clarify exactly when this is the case. In addition, a legal quotation must always be accompanied by a reference to the source – this may seem possible in the context of the newer music streaming platforms such as Spotify or YouTube, but has so far been rather unusual.

Impact on parody, satire – changes in copyright necessary

The strict interpretation of the European Court of Justice, according to which the limits of copyright law are conclusively regulated in EU law, has a further consequence that is very significant for Austria: According to the current legal situation, there is no legal basis that justifies the use of works protected by copyright in the context of a parody or satire. Parody and satire have so far always been judged permissible by Austrian case law. However, due to the strict interpretation of the CJEU, there is no longer any room for this; rather, this would have to be explicitly provided for in the law. The Austrian legislator has not yet done so.

Also due to the new EU legislation on upload filters for online platforms, there is a need for legislative action. It remains interesting to see how the exact formulation and extent of changes to platforms and parody exceptions in Austrian copyright law will come about.

[1] in an analogous application, although the “Metall auf Metall” judgment was about the related right of the phonogram producer and not about the copyright of the authors.