After 20 years Kraftwerk have been vindicated by the ECJ, who, in their judgment, have agreed that use of a two second sample from their original work amounts to copyright infringement.

Back in 1977 Kraftwerk published the song “Metal auf Metal” containing a particular original drum sequence. Later, in 1997 Pehlam, Haas and Setlur sampled and looped a two seconds clip of the drum sequence in their song “Nur Mir“.

Kraftwerk alleged that the defendants had copied the two second sequence from their track, infringing their copyright in their use of the sample. Kraftwerk subsequently launched legal proceedings in 1999 seeking an injunction and damages.

The case has been appealed several times in the German Federal Court who subsequently sought clarification from the European Court of Justice.

KEY ISSUES FOR THE ECJ

In seeking clarification, the German Federal Court asked the European Court various questions including:

1- Considering Article 2(c) and Article 5(3)(d) of Directive 2001/29/EC, and Article 9(1)(b) and of the first paragraph of Article 10(2) of Directive 2006/115/EC does the non-authorised inclusion of a sound sample in a phonogram by means of sampling from another phonogram constitute an infringement of the rights in the producer of the phonogram from which the sample in question was taken;

2- Whether the German legislation which allows an independent work to be created in free use of a protected work, in principle to be published and exploited without the consent of its right holders, is compatible with EU law; and

3- Is sampling capable of falling within the quotation exception which exempts a user from the need to seek the authorisation of the appropriate phonogram producer.

JUDGMENT ON SAMPLING

In considering the EU law elements at hand, the ECJ ruled that phonogram producers have the exclusive right to authorise or prohibit reproduction in whole or in part of their phonograms.

The judgment’s focus lay in the interpretation of the wording at Article 2 “in whole or in part”.

The Court noted that “that the reproduction by a user of a sound sample, even if very short, of a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram within the meaning of the provision, and that such a reproduction therefore falls within the exclusive right granted to the producer of such a phonogram under that provision” [29].

Importantly the ECJ understood that, in considering the sample, how it was altered, whether it was original and therefore be used without consent, “in a modified form unrecognisable to the ear, in a new work, it must be held that such use does not constitute ‘reproduction’ within the meaning of Article 2(c) of Directive 2001/29” [31].

If the sample were adequately modified in that way, then it would be protected by Article 13 of the Charter of Fundamental Rights of the European Union, which considers freedom of artistic expression in the EU.

MOVING FORWARD

This decision clarifies that even if the sample taken is short, in this case a two second clip, authorisation is still required for the exploitation and use of that sample.

Whilst this does provide some protection for rights holders, the limitations of “whole or in part” are still vague.

Similarly what constitutes “modified form unrecognisable to the ear” is unclear. For example, would The Prodigy’s use of Rage Against the Machine’s “Bull’s On Parade” for their track “Smack My Bitch Up” (ignoring whether in actuality any consent or license was agreed) fall under this definition, considering the sample taken has been modified but is still relatively recognisable?

Following a string of lawsuits in the music industry for copyright and infringement (see Ed Sheeran’s recent dispute for example) we may be in the process of accumulating precedents to clarify the position. In the meantime, and in this instance, we await the final decision from the German Federal Court.