Two Big Copyright Cases Sent To Top EU Court: One On Sampling, The Other On Freedom Of The Press
from the metall-auf-metall-auf-metall-auf-metall dept
Back in 2012, Techdirt wrote about one of the longest-running copyright sagas. It involved a 2-second rhythmic sample from the Kraftwerk track “Metall auf Metall“, which was used by the German rapper Sabrina Setlur in a single called “Nur Mir“. After the case had ping-ponged around various German courts for 12 years, a decision by Hamburg’s highest regional court seemed to be the end of the matter, as Tim Cushing described in his comprehensive post. But in 2016, Germany’s constitutional court took a look, and now a press release from the country’s highest court (original in German), the Bundesgerichtshof (BGH), informs us that the case is still not yet over, and that it is moving up a level. The BGH has asked the Court of Justice of the European Union (CJEU), the top court in the EU, to clarify some basic points of law. A post on the IPKat blog runs through the details, and notes that one of the issues is:
What role the rights granted by the Charter of Fundamental Rights of the European Union plays: in particular, what is the relationship between copyright protection (Article 17(2)) and freedom of the arts (Article 13)?
That’s asking a pretty deep question about copyright, and its relationship to creativity. As it happens, the same BGH has referred another copyright case to the CJEU asking equally important questions about that the role and limits of copyright (original in German). Here’s IPKat again:
The second reference (I ZR 139/15 – Afghanistan Papiere) has been made in the context of litigation between the German Government and German newspaper WAZ over the unauthorised publication by the latter of the so called ‘Afghanistan Papers’, ie confidential military reports on the operations of the Germany armed forces in the region in the period 2005-2012.
Exciting stuff. Equally exciting, albeit in a different way, are the key questions the BGH wants the CJEU to answer:
can copyright protection be trumped by the need to safeguard freedom of the press and freedom of information? Or can fundamental rights be even directly invoked to prevent enforcement of copyright?
There is probably no need to note that this question goes to the very heart of copyright protection, and will revive the longstanding discussion around the scope of protection.
Indeed. These are two very big copyright cases whose outcomes could have a major impact on the contours of copyright law in the EU, and maybe even beyond.