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.