Abstract
This Opinion from the European Copyright Society (ECS) discusses the legal boundaries of the use of sound sampling under copyright law in the context of the currently pending CJEU case 476/17 (Pelham GmbH v. Hütter). The ECS recommends a careful interpretation of the scope of the phonogram producer’s right. In the absence of any threshold or condition for protection, this right will extend to cover minimal parts of phonograms and will exceed the protection offered to works in copyright law. Sampling should only be covered by the phonogram producer’s rights where it significantly prejudices the economic interests of the right holder. The ECS also argues that the quotation exception in Art. 5(3)(d) InfoSoc Directive should apply to sound sampling, even where it is not evident to the listener that another person’s work or subject matter is being used in the form of a sound sample. However, such use requires that the source, including the author’s name, should be given in the description of the work. In this regard, the ECS reiterates the duty of the CJEU to interpret the provisions of EU Directives in a manner that ensures compatibility with the Charter of Fundamental Rights of the European Union, especially the freedom of the arts (Art. 13) and the freedom of expression and information (Art. 11). In the introduction below, Advocate General Szpunar’s Opinion (which takes a very different view on the issues referred by the national court) is also briefly considered.
Highlights
The following sets out the Opinion of the European Copyright Society (ECS) on (C476/17) Pelham GmbH v
The ECS reiterates the duty of the CJEU to interpret the provisions of EU Directives in a manner that ensures compatibility with the Charter of Fundamental Rights of the European Union, especially the freedom of the arts (Art. 13) and the freedom of expression and information (Art. 11)
The ECS argues in favour of a careful interpretation of the scope of the phonogram producer’s right, suggesting that sampling should only be covered by the right where it significantly prejudices the economic interests of the right holder
Summary
The following sets out the Opinion of the European Copyright Society (ECS) on (C476/17) Pelham GmbH v. In Deckmyn, as noted above, this definition was combined with a requirement upon national courts to apply the exception in accordance with a ‘‘fair balance’’ between competing rights In his Opinion in Pelham GmbH, the Advocate General takes a very different approach to the interpretation of the concept of ‘‘quotation for purposes such as criticism or review’’, suggesting that it is subject to (i) a requirement for interaction, (ii) a prohibition on alteration of the quoted subject matter and (iii) an obligation to distinguish the quoted element as a foreign element in the quoted work. The Advocate General clearly fears the threat of uncertainty to ‘‘good old property rights’’.11 his proposed solutions unnecessarily risk stifling the development of Union copyright law at a relatively early stage in its development and seem unlikely to foster European cultural and technological development
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