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.

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Comments on “Two Big Copyright Cases Sent To Top EU Court: One On Sampling, The Other On Freedom Of The Press”

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Vidiot (profile) says:

IPKat’s synopsis is great, but there’s a leap in the WAZ story that I can’t follow. On its face, we’re talking about unauthorized publication of a slightly classified ("lowest level of secrecy" in that German source document) report; and an instant later, it’s copyright infringement. Is that a German thing… government docs subject to copyright by the government? Or is the state just verärgert (upset) that it was made public? Is this one of those cases where espionage charges won’t stick, so they move on down to something civil?

glyn moody (profile) says:

Re: Re:

Seems to be framed as a purely copyright thing (

“Die Klägerin sieht darin eine Verletzung ihrer Urheberrechte an den UdP.”

“views it as an infringement of copyright”

But presumably that’s also a convenient way to attack a whistleblowing site, as you suggest.

Ninja (profile) says:

“It involved a 2-second rhythmic sample”


I always facepalm when I see things like this. Two goddamn seconds. This should be a non-issue from the start. If you take 2 seconds of any song and decide to litigate over it you’ll find THOUSANDS or even millions of similar stuff. Because there are limited stuff you can play in two seconds. But alas here we are discussing the monies to be made on a 2-second sample.

Then people call me extremist when I say copyright should be scrapped and banned from existence forever.

Thad (user link) says:

Re: Re:

Then people call me extremist when I say copyright should be scrapped and banned from existence forever.

Well, by definition, that’s an extreme position.

The opposite extreme would be to argue that copyright should last forever, fair use should not exist, and penalties for copyright violations should be ridiculously harsh. In other words, the exact position that the MPAA, RIAA, et al have been pushing forever.

I think most people probably think the answer lies somewhere in the middle between the two extremes.

Personally I’m in favor of going back to the original 14-year/renewable once to 28 term (in fact, let’s favor human beings over corporations and say that corporate-owned works only get the single 14-year term and can’t renew it), requiring proof of harm to receive damages, throwing out the DMCA’s anti-circumvention clause entirely, and shifting the burden of notice-and-takedown so that an invalid takedown notice will be met with the same penalties as copyright infringement and with a lower standard of proof.

Just spitballing here. What does everybody think?

That One Guy (profile) says:

Re: Re: Re:

Given the numbers I’ve seen seem to indicate that the majority of a work’s value is in the first few years, 14+14 might actually be too high.

A possible alternative would be to set the duration at five years, with say five possible extensions that need to be filed for. This would grant two extra years over 14+14 but require someone to actually be willing to put the effort into getting them so that works that aren’t considered valuable enough enter the public domain quicker, while more valuable works are still covered for the entire possible term.

The rest of it looks good(especially making filing bogus claims being punished the same as infringement), with my suggestions being a shift back to requiring registration(to deal with the orphan works issue) and a drastic lowering of possible damages to more sane levels(in addition to needing to show harm) to undercut trolling.

Thad (user link) says:

Re: We *had* it right.

Some of the clarifications on work-for-hire are good. I like that work-for-hire agreements have to be made in advance now or it’s not work-for-hire.

And while I’m opposed to extending copyright terms, I’m glad they at least added a reversion option for people who sold their work. Course, it’d be unnecessary if we’d stuck with the 56-year term. Or, better yet, the original 14 years renewable once to 28.

I think there are a lot of advantages to automatic copyright, too; I think it’s silly to lose your copyright just because you forgot to put a legend at the bottom of the page/screen/wherever. I understand that if you really want to protect your work in court, though, you do still have to file.

Wyrm (profile) says:

abuse, plain and simple

How is the second case a copyright issue?

It’s a government report. Setting aside the US concept that government documents are public domain in regards to copyright (other restrictions might apply though), copyright is supposed to be an incentive to produce *and spread* art and science.

Applying it as a pure tool of control for a document that the German government wants to keep hidden shows the obvious lie that copyright is not a censorship tool.

If the EUCJ wants to restore copyright to what it was supposed to be, it should not state whether journalistic use is “fair use” (or any local equivalent exception) or not, but that this simply is not a copyright question at all. That suing this case under copyright law is as obvious an abuse of the concept as it gets.

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