The German Advocate General, in a case concerning a two second sample of a song by German electronic band Kraftwerk, has recommended to the European Court of Justice that sampling without permission constitutes copyright infringement after related questions had been referred to the ECJ by the German Federal Justice Court.

The particular case the reference was made in regards to concerned a German music production company, Pelham GmbH, sampling approximately two seconds of a phonogram work first created by German electronic band Kraftwerk without their permission. They utilised this sequence in a largely unchanged way as a continuous loop in a new composition.

Kraftwerk argued that the use of this sample constituted an infringement of their producers’ rights, and therefore sought an injunction against further distribution of the song. Pelham has argued a position of ‘fair use’ under s. 24(1) of the German Copyright Act, and has stated its rights guaranteed by freedom of the arts under the EU Charter of Fundamental Rights in the face of this copyright claim.

‘Sampling’ refers to a music producing technique consisting of using electronic equipment to extract a segment of a phonogram, or a sound recording, so as to use it in a new composition. It is a common practice in the modern music industry, but its legality under EU law is not entirely certain.

The question posed to the ECJ involved determining whether a two second sample of a phonogram falls within prohibited reproduction ‘in part’ in Article 2(c) of Directive 2001/29/EC, colloquially known as the InfoSoc Directive.

The AG has argued for a wide interpretation of the protective rights offered. He said that a phonogram is protected by copyright as an indivisible whole on the grounds of its being recorded beyond a live performance. A recorded sound or word can fall within the scope of copyright protection, so the right to reproduce that phonogram is exclusively with the producer of it.

Therefore, his position is that for someone else to reproduce the phonogram to create a new one they must first obtain permission from the rightsholder, for example by obtaining a licence; without doing so they are infringing copyright.

He contends that the InfoSec Directive precludes Member State provisions like that of German ‘free use’. He says that Member States are not permitted to extend the scope of any noted exhaustive exceptions to EU copyright law, therefore believing that s. 24(1) of the German Copyright Act is in breach of EU law.

Concerns also arose in the case with the potential that giving the phonograph producers the exclusive rights to authorise or prohibit reproductions is contrary to freedom of the arts. However, the AG argues that since intellectual property such as this is a simultaneously protected fundamental right, it is a question of finding the right balance between them. He believes that the requirement of obtaining a licence for use is an appropriate method to obtain a proportional balance.

The opinion of the AG is not binding on the ECJ, but it will assist in the Court’s deliberations, and its judgment will be given at a later date.