The matter at hand

Hütter et al. are members of the musical group Kraftwerk. In 1977, that group published a phonogram featuring the song ‘Metall auf Metall’. In 1997, Mr Pelham and Mr Haas composed the song ‘Nur mir’, containing, in a continuous loop, an electronic copy (‘sample’) of approximately 2 seconds of a rhythm sequence from the song ‘Metall auf Metall’.

We will spare you our usual description of the different stages of the infringement proceedings subsequently brought before the courts in Germany, which went from the Landgericht Hamburg to the Oberlandesgericht Hamburg to the Bundesgerichtshof and then back to the Oberlandesgericht Hamburg and the Bundesgerichtshof once again, then to the Bundesverfassungsgericht and finally back to the referring court, the Bundesgerichtshof, which submitted a series of questions to the ECJ regarding the interpretation of Article 2(c) and Article 5(3)(d) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

The judgment of the ECJ

The ECJ starts by establishing that the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society does not contain a definition of the concept ‘reproduction … in whole or in part’ and that its meaning must therefore be determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purpose of the rules of which it is part (paragraph 28). On this basis, the ECJ concludes “that the reproduction by a user of a sound sample, even if very short, of a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram within the meaning of the provision, and that such a reproduction therefore falls within the exclusive right granted to the producer of such a phonogram under that provision” (paragraph 29). The ECJ considers that this interpretation is consistent with the general objective of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society to establish a high level of protection of copyright and related rights, and with “the specific objective of the exclusive right of the phonogram producer (…) to protect a phonogram producer’s investment” (paragraph 30).

The ECJ, however, adds that this is different where a user, “in exercising the freedom of the arts”, takes a sound sample from a phonogram in order to use it “in a modified form unrecognisable to the ear” in a new work (paragraph 31). According to the ECJ, to regard such a sample as constituting a ‘reproduction’ would not only run counter to the usual meaning of that word in everyday language, but would also fail to meet the requirement of a fair balance between the reproduction right of the phonogram producers on the one hand and other fundamental rights, including freedom of the arts protected under Article 13 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01], on the other.

As to whether the distribution of a phonogram containing a sound sample amounts to the distribution of a ‘copy’ of the phonogram within the meaning of Article 9(1) of the Rental and Lending Right Directive, the ECJ holds that the distribution rights aims, in particular, to fight piracy, that is the production and distribution to the public of counterfeit copies, as this poses a serious threat to the revenue phonogram producers receive by making phonograms available. The ECJ considers that this is not the case where it concerns an article which, without reproducing all or a substantial part of the sounds fixed in a phonogram, merely embodies sound samples transferred from that phonogram for the purposes of creating a new and distinct work. The ECJ holds that therefore, “only an article which reproduces all or a substantial part of the sounds fixed in a phonogram is, by its nature, intended to replace lawful copies of that phonogram and, therefore, capable of constituting a copy of that phonogram within the meaning of Article 9(1) of [Rental and Lending Directive]” (paragraph 46). The ECJ further notes that this interpretation is supported by the Geneva Convention, which provides that the producers of phonograms are to be protected against the distribution to the public of ‘duplicates’ of their phonograms and defines a ‘duplicate’ as an article which embodies ‘all or a substantial part’ of the sounds fixed in a phonogram.

The ECJ then goes into the referring court’s question of whether a provision of German national law, according to which an independent work created using the work of another person may be used and exploited without the consent of, in this case, the phonogram producer, is in accordance with the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. The ECJ rules that it is not, considering that Member States may not, in their national laws, lay down an exception or limitation not provided for in Article 5 of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. In this respect, the ECJ recalls that it has already pointed out on several occasions that the list of exceptions and limitations contained in Article 5 of that directive is exhaustive. The ECJ rules that such exception, namely the quotation right, may be applicable in the case of sound sampling, but only if the sample was included with the intention of entering into dialogue with the work.

In addition, the ECJ rules that Article 2(c) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law, considering that it defines a phonogram producer’s exclusive reproduction right in unequivocal terms and is not qualified by any condition or subject to any measure being taken in any particular form.