Abstract
In the ongoing discussion about the impact of fundamental rights on EU copyright law, the Pelham judgment of the Court of Justice of the European Union (CJEU) has received much attention. However, the decision also raises important legal-doctrinal issues. The CJEU employs the harmonized right of reproduction as a vehicle to regulate adaptations of pre-existing source material. Moreover, the Court insists on a balancing of interests within the EU matrix of exclusive rights and limitations. The closed list of limitations in EU copyright law, however, can hardly be expected to offer sufficient breathing space for adaptation scenarios. As the Information Society Directive did not harmonize the right of adaptation, there was no need to include indispensable free adaptation rules that have evolved at the national level, such as the German “free use” doctrine. Instead of embracing national rules of equity and fairness to fill the gap, the CJEU is reluctant to borrow from the legal traditions of EU Member States and misses an important opportunity to provide guidance for the regulation of adaptations outside the sound sampling arena. After an introduction to the German “Metall auf Metall” saga that led to the Pelham decision, the following analysis sheds light on these developments in EU copyright law and discusses problems arising from the approach taken by the CJEU.
Highlights
With the Court of Justice of the European Union (CJEU) judgment in Pelham, the German ‘‘Metall auf Metall’’ saga has reached another climax after no less than four decisions of the highest German courts.1 One may be tempted to say that, on the merits, the decisions revolve around a bagatelle: a rhythmic sequence of two seconds taken from ‘‘Metall auf Metall’’: a piece of electronic music that was part of the album ‘‘Trans Europa Express’’ which the iconic music group Kraftwerk released in 1977
After an introduction to the German ‘‘Metall auf Metall’’ saga that led to the Pelham decision, the following analysis sheds light on these developments in EU copyright law and discusses problems arising from the approach taken by the CJEU
The Court explicitly posed the questions whether the sound sampling amounted to a relevant reproduction in the sense of the harmonized concept underlying the Information Society Directive, whether CJEU decisions addressing the reproduction right were applicable to the neighbouring right of the phonogram producer, and whether EU law regulated limitations of protection in an exhaustive manner
Summary
With the CJEU judgment in Pelham, the German ‘‘Metall auf Metall’’ saga has reached another climax after no less than four decisions of the highest German courts. One may be tempted to say that, on the merits, the decisions revolve around a bagatelle: a rhythmic sequence of two seconds taken from ‘‘Metall auf Metall’’: a piece of electronic music that was part of the album ‘‘Trans Europa Express’’ which the iconic music group Kraftwerk released in 1977. With the CJEU judgment in Pelham, the German ‘‘Metall auf Metall’’ saga has reached another climax after no less than four decisions of the highest German courts.. One may be tempted to say that, on the merits, the decisions revolve around a bagatelle: a rhythmic sequence of two seconds taken from ‘‘Metall auf Metall’’: a piece of electronic music that was part of the album ‘‘Trans Europa Express’’ which the iconic music group Kraftwerk released in 1977. As pioneers in the field of electronical music, Kraftwerk has paved the way for music movements, such as electropop and techno.. Pelham and Haas sampled the rhythmic sequence and used that sample in a continuous loop. Even though the copied sequence may appear small in terms of size, the market for music samples and their importance for musical genres, such as hip hop, certainly are not..
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