The use of short extracts from sound recordings in sampling – infringement of copyright?

This post was contributed by Professor Jonathan Griffiths, Module Convenor for Intellectual property.

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Moses Pelham and Martin Haas composed the song “Nur mir”, which incorporated (“sampled”) a two-second rhythm section from Metall auf Metall, a sound recording (“phonogram”) made by Kraftwerk, the celebrated German pioneers of electronic music.

Pelham and Haas were sued for infringement of the producer’s related right (equivalent to copyright in sound recordings in the UK) in the recording of Metall auf Metall in the German courts.

After a significant period of time and a number of hearings in the national courts, it was decided that the case raised a number of interesting questions about the interpretation of European Union copyright legislation. Accordingly, these questions were referred to the Court of Justice (“CJEU”) (C-476/17 Pelham v Hütter).

One of the most interesting questions concerned the application of the concept of “reproduction in part” under Art 2 of the Information Society Directive. Specifically, could the reproduction of a very small extract from a sound recording (such as the two-second section at issue here) be regarded as an infringement of the related right in that sound recording?

The CJEU had already considered the concept of “reproduction in part” in its famous Judgment in (C-5/08) Infopaq International v Danske Dagblades Forening. In that case, it had held that the reproduction of a part of a literary work protected by copyright would infringe if it involved the copying of “elements of the creativity of the work’s author” (see section 8.1.2 of the Module Guide on Intellectual Property for further discussion).

The important distinction between Infopaq and Pelham was that, in the former, the CJEU was concerned with a “work” (that is, a copyright work requiring originality as a precondition for protection (see CDPA 1988, s.1(1)(a)), but in the latter, it was concerned with a form of copyright (or related right) for which originality is not a precondition. In Pelham, therefore, the Court could not apply the “elements of the creativity” test as a touchstone for determining liability.

In his Opinion in Pelham, in the absence of such a measuring concept, the Advocate General had come to the view that the national court should be advised that there is no de minimis threshold capable of application to sound recordings and, therefore, that the use of a very small extract should be regarded as “reproduction in part”.

However, when the Grand Chamber of the Court handed down its long-awaited Judgment on 29th July this year, it did not take the same tack (see paras [26]-[39]). Concerned about the impact of such a conclusion on subsequent creators, the Court held that the producer of a sound recording (phonogram)’s exclusive right:

“…allows him or her to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear [para 39]”.

Thus, the key criterion is now “recognisability”.

This conclusion not only introduces complexity into the definition of “reproduction”, it also raises interesting further questions. Recognisable by whom? An expert or to a member of the public? Does this outcome take adequate account of the cultural norms of the music industry? Do samplers often intentionally reference earlier materials? Is that acceptable practice?

Of course, even if a sampler is held to infringe, he or she may still have a defence to that infringement. In this respect, in Pelham, the CJEU also provided interesting guidance on the question of whether or not a sample might be exempted from liability as a “quotation” (see paras [66]-[74]).

Over to the German courts. Again…

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