The Court of Justice of the European Union (“CJEU”) has effectively ruled that sampling of music without the right-holder’s authorization in cases where the music sample used is unrecognizable does not infringe copyright. Infringement would occur if the music sample is however recognizable.

The relevant dispute arose over two decades ago and revolves around the use of a particular note sequence from a song by the acclaimed German electro-band Kraftwerk, titled ‘Metall auf Metall’ (1977). The phonogram was allegedly used by another two German producers, a certain Mr Moses Pelham and Mr Martin Haas, in their song ‘Nur mir’ (1997) via a loop of a few seconds at a reduced pace.

Preliminary Reference

Following years of proceedings, the Federal Court of Justice in Germany referred the issue to the CJEU for a preliminary ruling.

Several questions were posed to the CJEU, including whether the interpretation of certain articles within the Directive 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 (“Copyright Directive”) and of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property ( “Rental Directive”), allowed for latitude in their implementation by Member States.

The main question that was put forward to the CJEU, and the main bone of contention, revolved around the interpretation of Article 2(c) of the Copyright Directive and whether the actions of the defendants infringed the phonogram producer’s exclusive right to reproduce such a phonogram.

In addition, the CJEU was also requested to consider whether the same transfer of a phonogram to another phonogram goes against distribution rights granted by Article 9(1)(b) of the Rental Directive and whether the used phonogram amounted to a copy of the original. Furthermore, the German Court asked the CJEU to deliberate on whether the phonogram in question could be said to be utilized for quotation purposes.

CJEU’S Interpretation

The CJEU ruled that when a third party uses someone else’s phonogram into their own work this amounts to reproduction, thus infringing the original producer’s reproduction rights. The phonogram producer therefore possesses the exclusive right to authorise or prohibit the said reproduction either to a complete or partial extent. The CJEU however stated that where an individual “takes a sound sample from a phonogram” in the exercise of the freedom of arts, for the purpose of utilising it in an altered and unrecognisable state and “in a new work”, this would not be categorized as a reproduction in terms of article 2(2) of the Copyright Directive.

On whether, the phonogram in question amounted to a copy of the original work, the CJEU opined that a phonogram comprising of sound samples extracted from another phonogram does not constitute a ‘copy’ of the phonogram as it is not being incorporated in a partial or complete manner. The CJEU commented on what amounts to a copy in light of the spirit of the Rental Directive and that the Directive is intended to combat piracy and the production and distribution of counterfeit products.

Likewise, the CJEU was asked to consider whether the sampled phonogram could amount to a quotation. In accordance with the Copyright Directive, a quotation is generally used for the purpose of criticism or review of a work or other subject-matter which has been lawfully made available to the public and where unless impossible, the source, including the author’s name, is indicated. The CJEU approached the issue by considering the meaning of ‘quotation’ in everyday use and the interpretation given to it by case law. Considering such along with the purpose of a quotation, the CJEU concluded that where the work that has been utilized has not been identified this cannot amount to a quotation. In this case the merits did not fulfil the necessary requirements for the utilized phonogram to be considered a quotation.

Way Forward

An element that emerged from this ruling was that in essence the rights granted by copyright, as are other intellectual property rights, is not absolute. Even though in this case the CJEU ruled in favour of the producer, in that he or she has the exclusive right to reproduce and distribute work, the CJEU qualified its ruling by making reference to the fact that in Kraftwerk’s case the sound used in ‘Nur mir’ was recognizable. To the contrary had the sound been unrecognisable, the matter might have been a different one (although note that the CJEU only delivers points of law/interpretation).

As to whether national law can limit the scope of protection of the phonogram producer’s exclusive right to reproduce and distribute their work, the CJEU opined that the same Copyright Directive must be interpreted as “constituting a measure of full harmonisation of the corresponding substantive law”. This drove home the point that “by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order, rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law in the territory of that State.”

Thus, the phonogram producer’s exclusive right of reproduction in the European Union should not qualified by any condition, nor should it be subject, in its implementation or effects, to any limitation.

The merits of the case will now continue to be heard in front of the German Court for what will hopefully be a decisive end to a two-decade saga.

This article was written by Dr Terence Cassar, Dr Bernice Saliba and Legal Trainee Mark Zammit.

For more information on Intellectual Property, Information Technology Law and related areas please contact Dr Ian Gauci on, Dr Terence Cassar on, and Dr Bernice Saliba on

Disclaimer: This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.

Disclaimer This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.
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