European Court Of Justice Rules On Three Big Copyright Cases

from the not-great dept

Last week, the European Court of Justice ruled on three separate cases regarding copyright, and exceptions to copyright. We had covered two of these cases back in the summer of 2017 and we finally have rulings. Two of the rulings are… not good. One is okay. We’ll save the best for last.

The first of the cases, the Pelham case, was about whether or not sampling was infringing in Germany. This case actually goes back to the turn of the Millennium. In fact, all the way back in 2012 we wrote about how this (then) 12-year-old case had finally come to an end. If only. It involved a German rapper in the late 90s using 2 whole seconds of a 1977 Kraftwerk song “Metall auf Metall.” The question was whether or not such a tiny sample could be infringing. At the heart of the case was the ever-present conflict between copyright and freedom of expression. And here, the court said copyright trumps freedom of expression and creativity, even when it’s a tiny 2 second music sample. The only exception is if you somehow distort the sample so that it’s not recognizable.

In today?s judgment, the Court states, first of all, that phonogram producers have the exclusive right to authorise or prohibit reproduction in whole or in part of their phonograms. Consequently, the reproduction by a user of a sound sample, even if very short, taken from a phonogram must, in principle, be regarded as a reproduction ?in part? of that phonogram so that such a reproduction falls within the exclusive right granted to the phonogram producer.

However, the Court notes that, where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to embody it, in a modified form unrecognisable to the ear in another phonogram, that is not a ?reproduction?. In that context, the Court underlines that to regard such use of a sound sample taken from a phonogram as a reproduction subject to the authorisation of the phonogram producer would run counter, in particular, to the requirement to strike a fair balance between, on the one hand, the interests of the holders of copyright and related rights in the protection of their intellectual property rights guaranteed by the Charter and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, which are covered by the freedom of the arts, also enshrined in the Charter, as well as the public interest.

So, all you German musicians out there, make sure to distort your Kraftwerk samples.

The only commentary I’ll provide here is that if you’re unfamiliar with just how much damage this kind of attitude has done to hip hop in particular, where creative sampling created tons of amazing transformative works before the lawyers jumped in, you really don’t know much about how creativity and music works. While I’ve seen some copyright folks who claim to support musicians cheer about this ruling, it will actually do tremendous damage to the creativity and music — especially in historically more marginalized communities where sampling is much more readily available, compared to expensive instruments.

Moving on. The second case is really about copyright v. press freedoms. Here a German newspaper published a confidential military report, and the government sought to use copyright to block the publication. While the court recognizes that there might not be a legitimate copyright in this particular document, it does say that freedom of the press cannot be an excuse for making use of a copyright-covered work. That is unfortunate.

In today?s judgment, the Court makes clear that it is for the national court, first of all, to ascertain whether the conditions are satisfied so that military status reports are protected by copyright. Those reports can be protected by copyright only if they are an intellectual creation of their author that reflects the author?s personality and are expressed by free and creative choices made by that author in drafting those reports.

The Court adds that, if those conditions were satisfied and military status reports could therefore be regarded as ?works?, freedom of information and freedom of the press are not capable of justifying, beyond the exceptions or limitations provided for in the Copyright Directive, a derogation from copyright, in particular, from the author?s exclusive rights of reproduction and of communication to the public.

What this means — though the court won’t come out and say it — is that copyright is a fine and dandy tool for censoring the press. That’s really, really bad.

Finally, there’s a similar case that has a marginally better outcome. This case involved reporting on a copyright-covered document. The case involved a politician who was facing some negative press over a manuscript he had allegedly published under a pseudonym years earlier. When it came to light, he claimed that the publisher had altered the meaning of the text. A news organization posted a copy of the original manuscript to show that claim was not accurate. He then sued for copyright infringement. The questions here, similar to the previous case, concerned how freedom of the press intersected with copyright. The court said that various exceptions to copyright law were specific to each member state, so there are no European-wide rules on that (beyond the limits in the law on what user rights are allowed). But, the court does note that if something is covered by a user right (i.e., an exception to copyright law), then they don’t need to get authorization to use the work:

In particular, as regards the possibility for the Member States to allow the use of protected works in connection with the reporting of current events (to the extent justified by the informatory purpose and as long as the source, including the author?s name, is indicated, unless this turns out to be impossible), the Court holds that, in applying such an exception or limitation, the Member States cannot subject the exception or limitation to a requirement for the author?s prior consent.

To me, that seems kind of like copyright 101. The whole point of user rights (what people often call “exceptions and limitations” to copyright) is that those are the cases when the works can be used without permission. So, this is just repeating that basic fact. That’s okay, because it would have been worse if things had gone the other way, but other parts of this case are still pretty messy.

All in all, this is not great, as it appears to be cases where the court has made it clear that copyright can be used for censorship of music and the media. That can’t lead to good outcomes.

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Comments on “European Court Of Justice Rules On Three Big Copyright Cases”

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Scary Devil Monastery (profile) says:

Re: Trump copyrights freedom

"So has Germany just invoked an Autoban on sampling?"

More or less. Or rather, any form of sampling will be illegal if, at any point in time, someone claims it is.

The precedence is fairly chilling because by this ruling if you put two tones together in the same order as a prior work and a plaintiff can claim those two tones are indistinguishable from said prior work then you have a blanket ban on the new work.

Some 99% of classical and modern music alike are now open to any passing copyright troll.

Anonymous Coward says:

I want to point out: while I do not speak german, I do have some german ancestory. I am also pretty sure I, as a child, produced, in my infinite creativity almost all variants on the german words for ‘cat’ and ‘dog’. Therefore if you use either of these words (in german) I’m afraid you are infringing on my copyright and I’ll have to ask you to C&D.

That One Guy (profile) says:

Supporting the parts of the bridge you didn't just tear down

The whole point of user rights (what people often call "exceptions and limitations" to copyright) is that those are the cases when the works can be used without permission. So, this is just repeating that basic fact. That’s okay, because it would have been worse if things had gone the other way, but other parts of this case are still pretty messy.

It could have been worse sure, but given they also ruled effectively that sampling doesn’t exist in music at all(because if you have to change it until it’s no longer recognizable then there’s no reason to bother sampling in the first place) and that the press still has to consider copyright(so say hello to to a barrage of ‘you can’t publish that, it makes me look bad and I own the copyright on it!’) saying ‘user rights’ were supported is faint comfort given they just got through trashing those same ‘rights’.

Copyright really does bring out the insanity in people…

Anonymous Coward says:

So this is a direct attack on fair use ,
i listen to a lot of podcasts ,many podcasts contain 5-10 seconds of songs
in order to discuss them.
will people start suing hip hop singers in europe over a 2 second sample.
Is an artist really losing money because some random rap song has a 2 second sample .
i doubt it.
This also applys to any youtube video that contains 2 seconds of music .
Theres no creative person who is worried cos someone has a 2 second sample in a song .Unless they want to sue the artist in court and get some money .
This is even worse in an age where millions of people make music
on laptops and pc,s ,without having to go near a recording studio .

quote; A jury ruled that "Dark Horse" infringed upon "Joyful Noise," two songs that don’t share the same melody, chord progression or bass line. Something doesn’t add up here

The song at issue here does not have have the same notes as the
joyful noise song.
It has a sequence of similar notes .
And she is supposed to pay em 2.5 million dollars for using these notes
in part of her song .

Anonymous Coward says:

these rulings show the extent that the music industry can reach and the lengths it will go to to protect itself and the mega rich executives but it is them that are forcing these issues through, regardless of whose name(s) appear on the dockets and the actual artists will gain virtually nothing out of it, except, maybe, the disappointment from other artists. i think one very valid point to make though is that what goes around, comes around and sooner or later, those who insist on being part of the selfish, greedy shenanigans, as these most definitely are, get burnt themselves and personally, i hope that is sooner rather than later and hurts like hell!!

Leigh Beadon (profile) says:

Re: Re: Re: Re:

It’s a common misconception that as long as you aren’t selling something, it can’t be infringement. This is sadly not the case. So there’s a big gulf in between your two poles of creating and selling – called "sharing it at all and letting anyone other than yourself hear it" – for which an artist can still get in trouble even if they aren’t making a penny.

As for your question about the impact of sampling laws so far, well, though I share your belief in remembering the separation between art as art and art as commerce, the reality is the two remain intertwined as well. And a lot of classic sample-based hip-hop albums (Paul’s Boutique being the most common example) would simply not be released today, at all, and that is a shame.

Scary Devil Monastery (profile) says:

Re: Re: Re:3 Re:

"The Pelham case is a huge win for copyright thieves."

Yes and No.

It’s a win for the copyright cult trolls in a legal sense because there’s suddenly very few songs out there which cannot be hauled into court over stringing four chords together in a given order…
…but if there was ever a case to be made for the pirate way winning hearts and minds it’d be when artists discover they can’t play their own music without fending off lawsuits made by every third-rate ambulance chaser gone copyright troll.

I don’t think we’ll be waiting for long to see that happening. Not given the way youtube channel owners already have to spend hours daily to dispute invalid takedown requests.

Scary Devil Monastery (profile) says:

Re: Re: Re:5 Re:

Yeah, but it’s also a case of "be careful what you wish for". The copyright cult are getting closer to that border where suddenly almost every set of tones strung together can be considered infringing.

At that point, once it gets known that you’ll get sued or threatened with lawsuits by thousands of desperate lawyers as soon as you publish your music, what sane artist will even want to smell the word "copyright"?

Scary Devil Monastery (profile) says:

Re: Re:

"Sampling is still used heavily in Hip Hop, what’s changed about it? Electronic music is neck deep in sampling, always has been. Copyright isn’t going to stop us."

Except in Germany where one loose accusation will have the artist forking over more money than he ever made to some grinning copyright troll.

Because there’s now a precedent which says that any song containing sampling is in direct violation of copyright.

Anonymous Coward says:

at least Germany has precedent

A bit of fun from wikipedia,

"Funiculì, Funiculà is a Neapolitan song composed in 1880 by Luigi Denza. German composer Richard Strauss heard the song while on a tour of Italy six years after it was written. He thought that it was a traditional Neapolitan folk song and incorporated it into his Aus Italien tone poem. Denza filed a lawsuit against him and won, and Strauss was forced to pay him a royalty fee."

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