The Pelham Chronicles: sampling, copyright and fundamental rights
Bernd Justin Jütte, João Pedro Quintais · Journal of Intellectual Property Law & Practice · 2021
Bernd Justin Jütte is Assistant Professor in Intellectual Property at University College Dublin, Sutherland School of Law and a Senior Researcher at Vytautas Magnus University, Faculty of Law. João Pedro Quintais is Postdoctoral Researcher, University of Amsterdam, Institute for Information Law (IViR). This article Revisits the ruling of the Court of Justice of the European Union (CJEU) in Pelham (C-476/17) and its application by the German Federal Supreme Court. Assesses the implications of a wide construction of the reproduction right for sound recordings and a narrow interpretation of copyright exceptions and limitations for music sampling. Discusses the normative implications of the CJEU’s judgment on the interplay between fundamental rights and copyright, particularly in a digital environment. 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 judgement was published together, but not jointly, with those in Spiegel Online2 and Funke Medien.3 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; their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated.4 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. Where relevant, we draw 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 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 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 the context to the underlying legal issues (Section 2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (Section 3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (Section 4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (Section 5). We conclude with some doctrinal and practical observations on the broader meaning of the ‘Metall auf Metall’-saga (Section 6). Underlying the preliminary reference was a dispute between the music producer Moses Pelham and the iconic German electronic music band Kraftwerk. Before the German courts, Mr Pelham had argued unsuccessfully that he should be permitted to use a sample from the song ‘Metall auf Metall’ by the Kraftwerk in his song ‘Nur Mir’, which he had created for hip-hop artist Sabrina Setlur. In this song, Mr Pelham included a 2-second sample as a continuous loop. Before various German courts,7 he had attempted to rely on section 24 of the German Act on Copyright and Related Rights (UrhG).8 Under this provision, the ‘free use’ of a work in the creation of a new and independent work does not require permission from the rightholder. Because the German courts, including the BGH in 2012, only permitted the free use of a sample under very strict conditions9, Moses Pelham launched a constitutional complaint arguing that the restrictive conditions for sampling, which would make the unauthorized use of a sample virtually impossible, violated his right to artistic freedom as protected under Article 5 of the German Basic Law.10 After the German Constitutional Court (Bundesverfassungsgericht or BVerfG) upheld the complaint, it handed the case back to the BGH with an express encouragement to take into account the implications of EU law on the interpretation of German copyright law. Concretely, the BVerfG suggested that the BGH should consider making a preliminary reference to the CJEU so as to clarify the interpretation of the scope of the exclusive rights of phonogram producers and how section 24 UrhG must be interpreted in light of Article 5 Directive and EU fundamental rights to that the for the The BGH then the and referred to the whether unauthorized is a of the phonogram whether an of a phonogram is a of that phonogram for the of Directive and Rights whether the German ‘free use’ are under EU whether is by the quotation for the of in this and how fundamental rights in the EU of Rights of the European 2012, of Rights must be into account in this the BGH whether from the for the phonogram from which a sample is the rights of phonogram producers are at EU by Article 2(c) Directive and by Article and Rights the are in Article 5 which for an of in their as The question role fundamental rights in the interpretation of the all this Pelham should be in the context of the in Spiegel and Funke In some of the relevant of the judgments are or the of the the question whether the reproduction of a sample and its into a new song an of the scope the right of phonogram producers had to be interpreted a in copyright law not only in but in the it was to to a between the and the we Pelham a way into the of the EU law on this of the The Directive the exclusive right of phonogram producers to their phonograms in Article the scope of this or related right for that to be interpreted had not the of a preliminary reference before The CJEU had interpreted the scope of the reproduction rights for such as but and to the a of a work only a reproduction the meaning of Article Directive that the of the The German courts had argued that the scope of the reproduction right for phonograms of a sound of the of the this interpretation in his and suggested that in to the reproduction of The Court with the in that the protection for works and including are works under copyright are protected by of their phonograms are protected of the made in their In that the of of an work the reproduction right which are the of the related rights are of the in the protected is In that the and that to such legal protection be in the of the such a scope of protection for the phonogram reproduction the Court a for musical In to to some the of a sample is not to it is to the into the new This to the exclusive right a a sample in a new sound the freedom of the This is the of a between the right to under Article and the freedom of artistic creation under Article In this the assessment account of the impact of the free use of on the reproduction right of phonogram this the which had the BGH for its interpretation of the phonogram to the a of unauthorized of would not be in with the German constitutional and a between the right to and the right to artistic freedom under Article German Basic Law. The had a restrictive of artistic freedom which the to this freedom to those which the artist or legal from sound recordings to the and of in the same way that a to for his a music producer should for his this does not to legal the or of a or to a a right to the and of that The and and to a that the of rights of phonogram It to the context of the use of The use of in and hip-hop music in is than In the of meaning by way of to are in a that as it the at this is and a between the freedom of the artist to and the right of the producer of the to The CJEU this it two to use of that are to the the Court that a interpretation of the which is not in the very of a This is with the of the to with a of protection and to the made by phonogram a between the relevant fundamental rights that is permitted in to the opportunity to take in the of and and of all is a form of artistic protected by Article and Article of the European of Rights The of the CJEU that a through an interpretation of the right in Article 2(c) Directive would not a to be The Court to the that a wide interpretation of the exclusive right would to with a interpretation of the of a and a between the fundamental it is not in not to the phonogram a sample must be to the The from in the light of the of the of Article this would to be on the that the use of sample be that a song a sample in with the work from which the sample this interpretation is to it on a of EU law to in to a for the application of the exclusive The the Court for is it to of protection for phonograms as to a scope of the reproduction right for which all in their with a in how the sample is into a new phonogram producers broader protection than This is the protection for of their work only as are to the by the This between phonograms and works is on the that phonogram producers must be to it is in such a broader protection than that to the to the by the Court would be the in Article 5 as the Court in its judgment that the is in the exclusive rights and of the in the of a a interpretation of the reproduction right through the cannot be through the a This of to the scope of the exclusive rights in light of fundamental rights is not in CJEU case law. in to the right of to the the Court on the right to freedom of in to draw a between for and for that not a In a or the between copyright and permitted A with to the reproduction right in CJEU case law is to make to the in protected In the Court the scope of the reproduction right on the of the or the of in to and the of In Pelham, the Court the of a to from the scope of the reproduction In such a rights be to The to the be in the Court to the which to it is by nature an is to the with on the This courts to legal to those in of of the of the with in the of to the In that the in the CJEU’s ruling in Pelham, created the of the music to a sample in a new sound must be this to the of the Directive the BGH that was in ‘Nur in its The German ‘free use’ is Article 5 Directive does not an in its of German law cannot such a in its copyright law and section UrhG as an to the scope of the exclusive right under the conditions by the before the of the section UrhG be by and interpreted in the light of the German constitutional to the interpretation of the a of the right to artistic freedom and the right to would to to the The on this is that the interpretation of the reproduction right for phonograms for in German is referred to as in to works the reproduction right for works is the only right that between the and the of two copyright protection and related rights In in the of a these be a rely on an to exclusive In as we this not be The is that that on and of works through to be the reference is from a phonogram by related than a or a work of by This is a normative this of the EU legal and its interpretation by the a broader protection for copyright than related The in this case is the Pelham the for in the of In the ‘Metall auf Metall’ the not only to that the Moses Pelham had their reproduction had an that the of the sound of ‘Nur The distribution right in Article Directive only to and their The for phonograms is Article and Rights which to the of In this it is important to this in distribution of was the relevant of of to the the of the distribution right for phonograms is to that producers of phonograms their and to the in of of phonograms that these which the or a of an under the of in Article In a phonogram that the reproduction right under the Directive does not the distribution right under the and Rights an of the distribution the sample must be to an that it for the a phonograms that of from an phonogram be or made to the the distribution This interpretation the of the right of distribution from that of which cannot be with reference to Article Directive through a of the to the for of the reproduction right to distribution of phonograms unauthorized After such by way of into a new of a phonogram for the of Article 2(c) is to the rights of reproduction and distribution in the are independent and the reproduction right to of The Pelham preliminary reference three to in the the reproduction right would as it to be an to this the BGH had whether in some a quotation the meaning of Article under Article 5 whether fundamental rights an the cases in the these two a The UrhG the ‘free use’ which the use of works protected by copyright under strict such is in the of the the BGH whether such a in their copyright in to Article The Directive does not an that would to in the environment. The be in Article which to for the for or The BGH had suggested the quotation in Article Directive as a for sampling. Before the three preliminary in Pelham, Funke Medien and Spiegel the quotation had not the of the CJEU. The that in their for an for for such as or provided that their use is in with the for which be permitted are not to or but to of the of some of In the of a of the Court referred to the meaning of the The is by the use of a work or an the of an of an or of an between that work and the of that had that such use must be to into a with the work which an which the Court a of this the scope of is in the case of it is to that are to the or be between the two This in musical quotation a quotation the meaning of Article only a be and the use with all conditions of the provision, including that it is with In this the Court a reference to Article in the light of which the quotation be to musical The reference to fundamental rights be in a way as the fundamental of the reproduction right for it would require courts to the quotation to artistic of the of quotation should be that suggested by the that it must to into a with the In the reference to a that this is a that must be from the of the It should not whether a the this is a of the of the to into a should be all all are to the use of a sample the scope of the this is to in than to in guidance from the this assessment with courts and to or it for the artist to that a was would but into question the of the as it into a to the be to the a with an This be a but the question to draw the in that is the EU cannot be this of and is that courts to on a as a sample is in a new it be for the to and courts to on the between musical guidance is provided by the CJEU. The BGH to the that the use of the sample was to a between the two The conditions of section which Article not to be In the of the sample not an with the work which form a of for In this would require that the sample be as to the new to the the sample be in the new by Moses Pelham, a cannot that the sample from It is the of a that the for a between two musical The BGH a for to for an This is for that not such as the sample at from the Kraftwerk song ‘Metall auf which Moses Pelham included in ‘Nur the BGH’s it is to how a sample from an of electronic music of into a with a hip-hop song from the This in the BGH’s with it it to a of a and that are in nature to the work in and are to as a quotation than with less obvious as we the CJEU the assessment of a of then the should be on the than on the assessment of whether a is be this of and from the CJEU’s judgement and is not of the BGH’s and an of into a is then its application by the BGH in the case its In the on such as of of and of how make these their or judgments on the use of the sample before a normative this would be an courts to and with these It cannot be that some of to the CJEU in the On this it that Article the on It in that that the conditions of that must be permitted in of the of the conditions are in Article the interpretation to the quotation by the CJEU in of legal The of a this particular the nature of the the interpretation to the of is under the a on the application of the The quotation in to of sound a scope to a with the work from which a sample is on the and the permitted under a interpretation of the exclusive right for phonogram on the a wide of the exclusive right of phonogram producers in Article 2(c) In of to some of those the BGH suggested that for be by a The German UrhG such a in the form of the ‘free use’ This of protected works the ‘free use’ of the same in the creation of a new and independent the of Article 5 Directive does not a of that In his had not that or a into their copyright law as as the interpretation and application of that does not the scope of the in Article and application of such a by a that provided for in the of Article 5 the had not implemented that particular to the Article 5 does not a the use of works of for the of a new The Court a restrictive it from that of the it to the same the a such as the German ‘free use’ defence of section UrhG is in not with the of in the to the the that the between the of and the are in the exclusive rights on the on the to in their would the by the EU to the Court argued that at the by the courts, would the of and the of legal This of was in Spiegel and Funke In the of an express that musical reference in to this into their of must make with the in the of the In this the Court the of a in the copyright at the of the There is that to the CJEU’s in this the exclusive right of reproduction of phonogram producers is implemented in all the of an for a particular use is on at a not to a particular from the then the between fundamental in the interplay between exclusive rights and not in a would not the of and would to legal The CJEU this in and important not only of Pelham, but of Funke Medien and Spiegel Online. The Court that the between the fundamental rights which is by the interplay of exclusive rights and must its in the of the are to the of the the a which of the to this be the to Article 5 in the light of the EU in some cases to an that is to the as for the case of sampling, the right to and artistic The in this In of the nature of the must that of the quotation for the of sampling. The that fundamental exceptions a which their strict interpretation by the BGH the of the for and and under Article of which an express in the of the the BGH argued that a in the of the German courts and be on under section the BGH the ‘free use’ defence as an of the and a does not for that the BGH the of a under German which would require express by the the BGH the ‘free use’ as a that must be in the light of as as the of the a the of the rely on the ‘free use’ as a defence and the for an to the in The Pelham judgment is important not only for sampling, but into EU copyright law in The interpretation of the of the Directive and of the in light of fundamental rights to be by the in In to the role of fundamental rights in EU copyright the judgment must be and in light of the judgments in Funke Medien and Spiegel Online. all three judgments handed by the their The of the to their the between the in Pelham not an in particular all such be on fundamental The Court on the included in a new song are not require are to the their use does not require This to their artistic freedom is to the and of On the the use of the scope of the reproduction right and such a use is only permitted it from an in Article 5 including the for this to the sample must the of Article In it would to be that the artist the of into a with the work from which the sample is a the application of the quotation to musical be a for the Pelham is not a judgment in the that it would the of the interplay between copyright and fundamental we should not that the ruling Article EU to scope of the reproduction right for phonogram producers as to the interpretation suggested by the that role of fundamental rights is to an in to the interpretation of the The rights in the EU and those in the the of rights and only the by the by the the and scope of copyright, an of these through the of fundamental rights is not The legal to the a between the of and the This is in the interplay between exclusive rights and including the The assessment be for to the impact of the of the on the rights of only is the legal that rights that but it the of a European fundamental rights in form of the fundamental rights as important in the interpretation and application of exclusive rights and are at the same as of EU including the of and legal The important practical for EU copyright law is that the of the that are by the of in Article 5 some for in to those the does not for exceptions as this to the and legal It argued that the nature of the in Article and in a to the of the the of the of the EU is from In that by the Court is in a which is in Spiegel and Funke the CJEU that some of Article 5 a those that to fundamental rights and to and the in copyright law or be by the the exceptions for and by the should those that must be into for are to the be Pelham in a interpretation of the role of fundamental rights in copyright law. In the Court the for an of copyright in the The in Pelham had at suggested that this be to the by the European Court of Rights in and The it not this it is that Funke Medien and Spiegel to a by the Court of the as the of the of the in copyright law by reference to fundamental rights at and European in to and the the of In to this the the in the of the as the interplay between copyright and fundamental that it is to the strict on and legal as an to the to the copyright law. that was the then the of Article of the Directive is an of the we argued Article Directive to this This the of a of for by their Under the new these are for to the the a freedom of are the on such to the of protected by copyright by their the of this provision, the this under Article of the on the of the European Union The focuses on Article and in the that a and that to and of Article for the of which the Court to consider in its In Article a of to protected on and use for the of or are and not to or by protection that we argued that are to rights or Article for its a of including an on to and complaint and on to and and an on to in for the of of the of the to Article it is that Pelham implications for the interpretation of this quotation is an of EU the for its interpretation in Pelham as Article Directive should to the interpretation of that on Article in light of the nature of the in Article with its in and its on freedom of it to that Pelham a for the interpretation of the scope of the quotation is to the scope of the quotation in Article be broader that is in Pelham, but not This article the Pelham saga, which its with the judgment of the BGH in April as a dispute was to European and in an by the it the opportunity to the constitutional of copyright law. The which of only by not a but relevant for legal and The BGH the CJEU’s on all It is that the scope of the exclusive right of reproduction for phonograms the scope of the right for authorial of works the meaning of Article Directive are only protected as as form of the of a phonogram to be protected under Article a of of a phonogram it his fundamental right to artistic freedom that use be provided the sample is not to the into the new The question whether a would to related those of an This of the reproduction right to a to its in a doctrinal to exclusive rights are in but to to sampling. In the of a must rely on some of the the interpretation to the quotation which that the sample to into a with the it that on this defence be for the same the CJEU the that exceptions in their law and the of a in European copyright a constitutional Pelham a impact in the and should the European to The CJEU a of of the of the of the in copyright law as a of the to the an of would the of the The EU is to to the scope of rights and by fundamental The must be by the the is and for the The of an role of copyright as it for musical creativity is a the Court a works as a form of with all copyright, this at a whether this be by to copyright, or which a in creativity to be