Case C‑476/17
Pelham GmbH and Others
v
Ralf Hütter
and
Florian Schneider-Esleben
(Request for a preliminary ruling from the Bundesgerichtshof)
Judgment of the Court (Grand Chamber), 29 July 2019
(Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information Society — Harmonisation of certain aspects of copyright and related rights — Sampling — Article 2(c) — Phonogram producer — Reproduction right — Reproduction ‘in part’ — Article 5(2) and (3) — Exceptions and limitations — Scope — Article 5(3)(d) — Quotations — Directive 2006/115/EC — Article 9(1)(b) — Distribution right — Fundamental rights — Charter of Fundamental Rights of the European Union — Article 13 — Freedom of the arts)
1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Scope — Use by a third party of a sound sample, even if very short, of a phonogram for the purposes of including that sample in another phonogram — Included — Exception
(European Parliament and Council Directive 2001/29, Art. 2(c))
(see paragraphs 27, 34, 35, 37-39, operative part 1)
2. Approximation of laws — Copyright and related rights — Directive 2006/115 — Distribution rights — Copy — Concept — Phonogram containing sound samples transferred from another phonogram — Not included — Conditions
(European Parliament and Council Directive 2006/115, Art. 9(1)(b))
(see paragraphs 47, 51, 52, 54, 55, operative part 2)
3. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Exceptions and limitations — Scope — Exception or limitation other than those provided for in the directive — Not included
(European Parliament and Council Directive 2001/29, Art. 2(c) and (5))
(see paragraphs 58, 65, operative part 3)
4. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Exceptions and limitations — Concept of citations — Situation involving the impossibility of identifying the work concerned by the quotation in question — Not included
(European Parliament and Council Directive 2001/29, Art. 5(3)(d))
(see paragraphs 72, 74, operative part 4)
5. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Scope — Complete harmonization
(European Parliament and Council Directive 2001/29, Art. 2(c))
(see paragraphs 84-86, operative part 5)
Résumé
By the judgment of 29 July 2019, Pelham e.a. (C‑476/17), the Grand Chamber of the Court interpreted the exclusive rights of phonogram producers to reproduce and distribute their phonograms as well as the exceptions and limitations to those rights, as provided for in Directives 2001/29 (1) and 2006/115, (2) in case of taking a sound sample (‘sampling’) of a song for the purpose of using it to create a new song.
Mr R. Hütter and Mr F. Schneider-Esleben (‘Hütter and another’) are members of the group Kraftwerk. In 1977, that group published a phonogram featuring the song ‘Metall auf Metall’. Mr Pelham and Mr Haas composed the song ‘Nur mir’, which was released on phonograms recorded by Pelham GmbH in 1997. Hütter and another submit that Pelham electronically copied (‘sampled’) approximately 2 seconds of a rhythm sequence from the song ‘Metall auf Metall’ and used that sample in a continuous loop in the song ‘Nur mir’. As the phonogram producers, Hütter and another claim that Pelham infringed their copyright-related right.
In that context, the Court first pointed out 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, which falls within the exclusive right of the producer of such a phonogram provided for in Directive 2001/29.
The Court however noted that a balance must be struck between the intellectual property rights, (3) enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’), and other fundamental rights enshrined in the Charter, including freedom of the arts, (4) which, in so far as it falls within the scope of freedom of expression, (5) affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds.
Thus, the Court held that, in the light of the Charter, the phonogram producer’s exclusive right to reproduce and distribute his or her phonogram (6) allows him or her to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear.
Next, as regards that exclusive right, the Court also specified that Article 2(c) of Directive 2001/29 constitutes a measure of full harmonisation of the corresponding substantive law. Thus, a phonogram producer’s exclusive right of reproduction in the EU is defined in that directive in unequivocal terms, without being, furthermore, qualified by any condition, nor is it subject, in its implementation or effects, to any measure being taken in any particular form.
Furthermore, as regards the exclusive right granted to a phonogram producer to make available his or her phonograms, including ‘copies’ thereof, (7) the Court held that the concept of ‘copy’, as employed also in the Geneva Convention (8) and with which the interpretation must be consistent, should be understood as excluding a phonogram containing sound samples transferred from another phonogram since it does not reproduce all or a substantial part of that phonogram.
Moreover, considering the possibility of derogating from the exclusive right of phonogram producers to reproduce their phonograms, the Court held that a Member State cannot, in its national law, lay down an exception or limitation to that right, other than those provided for in Directive 2001/29. (9) In that regard, it recalled that the list of exceptions and limitations provided for by that directive is exhaustive.
Considering, finally, the concept of ‘quotations’ referred to in Directive 2001/29, (10) the Court held that the directive does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question. However, where the creator of a new musical work uses a sound sample taken from a phonogram which allows an average listener to identify the work from which that sample was taken, the use of that sample may, depending on the facts of the case, amount to a ‘quotation’, within the meaning of Directive 2001/29, read in the light of Article 13 of the Charter, provided that that use has the intention of entering into dialogue with the work from which the sample was taken and that the conditions set out in Directive 2001/29 are satisfied.