Abstract
On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated. This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling. This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6).
Highlights
On 29 July 2019, the Court of Justice of the European Union (CJEU or the ‘Court’) rendered its long-awaited judgment in Pelham.[1]
The BGH stayed the proceedings and referred six questions to the CJEU: (i) whether unauthorized sampling is a prima facie infringement of the phonogram producers’ right; (ii) whether an extract of a phonogram is a ‘copy’ of that phonogram for the purposes of Directive 2006/115 (Rental and Lending Rights Directive)[12]; (iii) whether national rules like the German ‘free use’ provision are acceptable under EU law; (iv) whether sampling is covered by the quotation exceptions and limitations (E&Ls); (v) what latitude exists for the national implementation of E&Ls in this respect; and (vi) how fundamental rights in the EU Charter
As noted, according to the Court, the mechanisms that ensure the fair balance between the interests of rightholders, users and the public are contained in the InfoSoc Directive: exclusive rights on the one side; E&Ls on the other.[67]
Summary
On 29 July 2019, the Court of Justice of the European Union (CJEU or the ‘Court’) rendered its long-awaited judgment in Pelham.[1]. This article focuses on Pelham, or the ‘Metall auf Metall’ saga, as it is known in Germany It analyses the relevant aspects and impact of Pelham on EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in Article 2(c) of Directive 2001/29/EC (InfoSoc Directive).[5] The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades This saga included a constitutional complaint, which in 2016 answered the question in the affirmative.[6] The BGH’s preliminary reference to the CJEU was important because, on the back of the reproduction question, it. We conclude with some doctrinal and practical observations on the broader meaning of the ‘Metall auf Metall’-saga (Section 6)
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