Korišćenje tuđeg autorskog djela - između slobode izražavanja i povrede autorskog i srodnih prava

Abstract

The paper deals with the analysis of copyright and related rights aspects of the creation of works and protected subject matters that arise from the use of excerpts from other people's copyrighted works. Modern technology has enabled various forms of combining and modifying parts of other people's works in various fields of creativity. Today's popular culture abounds with new forms of expression of creativity, which are largely based on the use of existing content. Creating new content from existing photos, videos, music has become an everyday activity for most people. Some new music directions are based on the use of other people's works, for example - hip hop. Sampling is the reuse of a portion of a sound recording in another recording. Samples may comprise elements such as rhythm, melody, speech, sounds, and maybe sped up or slowed down, looped, or otherwise manipulated. Sampling is the focus of our interest due to the litigation in Germany which was brought to the Court of Justice of the European Union. The paper analyses certain issues from the judgment of the Court of Justice of the European Union in the Pelham case, in which the subject of the dispute was the use of a noticeably short excerpt from someone else's composition. The judgment specifi es the conditions under which there is an infringement of copyright and phonogram producer's rights, especially reproduction and adaptation rights. The phonogram producer's exclusive right to reproduce his or her phonogram allows him 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 unrecognizable to the ear. The judgment deals with copyright and related rights exceptions and limitations. Regarding the quotation exception, the Court stated that the user of a sample might invoke the quotation defence only in relation to a sample that is recognizable to the ear. Also, the judgment deals with the influence of freedom of expression on the shaping of copyright and related rights exceptions and limitations. A fair balance must be struck between the interest of the holders of copyright and related rights in the protection of their intellectual property rights, on the one hand, and, on the other hand, the protection of the interests and fundamental rights of users of the protected subject matter.