CJEU: Sampling permissible within narrow parameters

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The courts have been grappling for years with the extent to which sampling pieces of music breaches copyright. The Court of Justice of the European Union (CJEU) has now ruled that sampling is permissible within narrow parameters.

This longstanding legal dispute concerns an electro-pop group and a music producer. The producer had taken a short sequence from a song by the pop group and added it to a song by another singer. The latter featured the relevant audio sequence at a reduced speed and in a continuous loop. The band considered this a breach of their copyright.

The dispute has occupied the courts for years. The Bundesverfassungsgericht, Germany’s Federal Constitutional Court, had already ruled that artistic freedom is to be valued more highly than intellectual property if the copyright breach is minor and the creator suffers no economic loss as a result. The Bundesgerichtshof, Germany’s Federal Supreme Court, has since referred the matter to the CJEU. We at the commercial law firm MTR Rechtsanwälte can report that, according to the CJEU’s ruling, sampling may be permissible within narrow parameters even if the creator’s consent has not been obtained in advance.

In a ruling from July 29, 2019, the CJEU held that sampling may constitute an interference in the phonogram producer’s rights if it happens without their permission. Notwithstanding this, it is possible to use a short audio sequence without permission if the audio fragment is inserted into a new work in a modified form that is unrecognizable to listeners (Az.: C-476/17). The Court went on to state that the assumption that a reproduction of this kind requires the phonogram producer’s consent runs counter to, among other things, the need to strike an appropriate balance between, on the one hand, the interests of the copyright holders and related rights in the protection of their intellectual property, and, on the other hand, the protection of the interests and fundamental rights of those using the protected subject matter, including artistic freedom and the public interest.

The CJEU concluded that taking (modified) fragments from a phonogram and using them to create a new independent work does not amount to an illegal copy from the phonogram, and that national provisions needed to take a back seat to EU law here.

Lawyers with experience in the field of industrial and intellectual property law can advise on matters relating to copyright and the protection of intellectual property.


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