Saturday, 22 December 2018

A Kat's 2018 Copyright Awards

Kat Awards!
The end of 2018 is fast approaching and, if you've not been stranded at Gatwick Airport due to the drone chaos (I have), you might have already begun your Holidays. 

As it has become sort of a tradition for this blog, also this year The IPKat is conferring a number of (symbolic) copyright prizes. For previous editions, see herehere, here, hereand here.

2018 has been an eventful copyright year, with Europe playing a key role on the global arena, also due to the ever-heated discussions concerning the EU copyright reform, most notably with regard to the proposal for a Directive on copyright in the Digital Single Market [Katposts here]. As readers know, the proposal is now approaching the end of its legislative iter, having both the Council and the European Parliament adopted their own versions of the directive and with trilogue negotiations currently ongoing. The final text of the directive will possibly see the light sometime in the first quarter of 2019.

In addition to this, the European copyright scene has been also significant due to judicial developments, with the Court of Justice of the European Union (CJEU) deciding or being referred interesting and important cases, ranging from the interplay between copyright and fundamental rights (Afghanistan PapersMetall auf MetallSpiegel Online) to the issue of digital exhaustion under the InfoSoc Directive, from sensory copyright to the direct liability of platforms like YouTube for the making available of user-uploaded content.

In all this, uncertainties underlying the future of IP rights, including copyright, post-Brexit remain.

On the topic of enforcement, it is relevant to notice how the approach to online issues has been developing, also due to courts in different countries (eg, UKItalySingapore) considering new forms of blocking orders. In this sense, also in 2018 it is apparent that the involvement of intermediaries in the online copyright enforcement process has remained central. 

As far as the UK is concerned, a potentially significant development relates to cost allocation in intermediary injunctions: traditionally the rule in copyright has been that, while rightholders bear the costs of application for an injunction, intermediaries have to cover the costs of implementation thereof. Following the UK Supreme Court's decision in Cartier last June - which related to injunctions under s37(1) of the Senior Courts Act, that is a different legislative basis for intermediary injunctions from the one used in copyright (s97A CDPA) - it will be interesting to see how far the 'new' rule on cost allocation (rightholders to cover all costs) goes and whether it would lead to a rethinking of the overall approach to intermediary injunctions, also in copyright cases.

Anyway, without further ado, here are The IPKat 2018 copyright prizes:


Most important copyright decision

The final chapter in the ReDigi saga in the US, concerning the issue of digital first sale, is surely significant, but in my view the most important judgment of the year is the CJEU decision in Levola Hengelo, C-310/17 [here]


Despite its seemingly odd subject matter (the taste of a spreadable cheese), the issues referred to the CJEU were not odd at all, since they relate to the very core of what copyright protects, that is 'works'. 

In its decision the CJEU touched upon a number of issues, and most importantly (yet unsurprisingly) it held that the notion of 'work' is an autonomous concept of EU, which must not be interpreted having regard to Member States' own laws. The Levola Hengelo decision raises a number of questions:
  • If the notion of 'work' is EU-wide, then protection should be granted across the EU to all subject matter deemed to be a work, irrespective of the category such subject matter belongs to. If this is true, then certain national approaches (like the one in the UK, which has a closed and very formalistic list of protectable categories) might be deemed incompatible with EU law;
  • The CJEU envisaged a requirement of 'objectivity' in copyright law, and Advocate General (AG) Wathelet in his Opinion [here] expressly referred to the Sieckmann decision, concerning the graphic representation requirement in trade mark law: do the requirements for different IP rights overlap? If so, to what extent?
  • Did the CJEU envisage a fixation requirement, which under international law is a matter reserved to individual signatories?
  • Did the CJEU close the door on copyright protection of 'sensory' subject matter tout court, including perfumes? Probably not ...
Overall, cases like this serve to highlight how 'unconventional' subject matter has been stretching the boundaries of traditional IP rights. This is true for copyright and, perhaps even more clearly, for trade mark law. 

Most important piece of legislation

Outside Europe, in the US the most significant development has likely been the adoption of the Music Modernization Act. In Australia developments in website blocking legislation have been also significant. 

However, the prize goes to something which is not law yet: the draft Directive on copyright in the Digital Single Market. 

If nothing else, this is so for the heated discussions that it has been attracting and the emotional tones used at all levels, with commentators taking things very personally and attacking those with different views calling them (rather than their ideas) 'disingenuous' (to say the least). Of course, the more aggressive, the more likes on social media. Chill pill, anyone?

AG Szpunar
Copyright person of the year
It is suggested that EU copyright is where the most significant developments have been occurring lately. In this sense, the CJEU has been playing a central role, and it is indeed someone from this institution who deserves the prize of 'Copyright person of the year'.
It is AG Maciej Szpunar, and the reason is threefold. 
First, because of his active presence on the copyright referrals scene, with quite a few Opinions being issued in respect of topical areas, including communication to the public (eg The Pirate Bay case, on which see here) and - more recently - copyright and fundamental rights (he is the AG in all the three German referrals detailed above). 
Second, because his Opinions are never banal and - importantly - are never ideological (neither is a given in copyright law): it is very refreshing to see how, each time, the AG approaches the questions referred from national courts in a learned and interesting fashion. Examples in this sense are the recent Opinions in Afghanistan Papers [here] and Metall auf Metall [here].
Third, because the AG has had the merit of stressing the need for dynamic interpretations of the copyright acquis, in light of the rationale of relevant EU directives and also to take into account technological advancements. In his Opinions in both Vereniging Openbare Bibliotheken [here] and Verwertungsgesellschaft Rundfunk [here], the AG expressed the view that "it is imperative to give legal acts an interpretation which takes into account developments in technology, markets and behaviour and not to fix such acts in the past by adopting too rigid an interpretation": a dynamic interpretation of the provisions of law, which is capable of adapting the wording thereof to the changing conditions, allows in fact the objective sought by the provisions at issue to be attained.
Most important unresolved issue

This is an issue that, rather than being unresolved, remains highly contentious. It relates to the direct liability of platforms for user-uploaded content. As readers know, back in 2017 the CJEU ruled that the operators of The Pirate Bay could be regarded as directly liable for users' infringements. However, it is not entirely clear to what extent this conclusion could be applied to less egregious scenarios.

This is no mundane issue, of course, and is currently central to two areas. The first one is Article 13 of the draft Directive on copyright in the Digital Single Market (the 'value gap' proposal) which is rooted within the idea that platforms communicate to the public. The second one is the referral from the German Federal Court of Justice (mentioned above), which has recently asked the CJEU to rule on this very point under existing legislation and in relation to YouTube (the case has now been numbered and it is C-682/18).

In all this, what is also controversial is whether a platform that is deemed to do directly acts restricted by copyright may be nonetheless eligible for the safe harbour protection in Article 14 of the E-commerce Directive. In respect of the initial formulation of Article 13, this appeared to be the case, but later versions excluded it. It will be interesting to see what the final version of the provision states in this regard.

Most important policy issue for 2019

Being a bit banal here ... but the key policy development will be the agreement reached in respect of the draft Directive on copyright in the Digital Single Market. Especially with regard to Article 13, but also Article 11 (press publishers' right), and Article 3 (text and data mining).

This is not the only 'deal' that will matter in Europe in 2019 ...

Most important copyright-protected work

It is Bansky's Girl with Balloon, that (partly) shred right after being auctioned at Sotheby's, and greatly increased in value because of this. 


It stands as a memento that creativity goes beyond images and text, and that we should never stop looking at things with new eyes. New meanings can be created all the time. Is the same true also for copyright law? Should it be?  

Enjoy the Holidays!


[Originally published on The IPKat on 22 December 2018]

Thursday, 20 December 2018

CJEU rules that warehouse storage of counterfeits due for sale falls within scope of distribution right

Gamla stan in Stockholm,
where the defendant's business was located
Back in October The IPKat reported that in Syed, C-572/17 Advocate General (AG) Campos Sánchez-Bordona had advised the Court of Justice of the European Union (CJEU) to rule that the warehouse storage of copyright-infringing items due to be issued to the public is to be considered as an act falling within the scope of the right of distribution within Article 4 of the InfoSoc Directive.

Personally I thought and wrote that, in light of existing CJEU case law on the right of distribution - notably the decision in Dimensione Direct Sales [Katposts here-, the AG Opinion was not at all surprising.

Yesterday, after less than 3 months, the CJEU issued its judgment, which endorses the Opinion of AG Campos.

Let's see how the Court reasoned.

Concept of 'distribution'

The CJEU started by noting the the concept of 'distribution' within the InfoSoc Directive:

  • Should be given the same meaning as ‘making available to the public … through sale’ within Article 6(1) WCT
  • Entails (see Dimensione Direct Sales) "a series of acts going, at the very least, from the conclusion of a contract of sale to the performance thereof by delivery to a member of the public. A trader in such circumstances bears responsibility for any act carried out by him or on his behalf giving rise to a distribution to the public in a Member State where the goods distributed are protected by copyright" (emphasis added). The phrase 'at the very least' means that the acts or steps preceding the conclusion of a contract of sale may also fall within the concept of ‘distribution’. It follows that, not just an actual sale, but also an offer to sell which binds its author might be regarded as an act of distribution.     
  • Does not require the offer for sale to be actually followed by a transfer of ownership to a purchaser of the protected work or a copy thereof.
All these preliminary remarks served the CJEU to hold that:
Although carrying out the sale is not a necessary element for the purpose of establishing an infringement of the right of distribution, it must nonetheless be proven, to that end, that the goods concerned are actually intended to be distributed to the public without the rightholder’s consent, inter alia by their being offered for sale in a Member State where the work at issue is protected
In a case like the one at issue, that is of someone storing infringing goods and selling identical goods in a shop, what needs to be determined is whether the storage is to be regarded as 'an act prior to a sale'.

The answer is yes, "if it is established that those goods are actually intended to be sold to the public without the rightholder’s authorisation". This might or might not be the case of infringing content held in storage. The right of distribution only goes as far as encompassing the storage of content due for sale.


Not everyone is happy
to be held in storage
When does storage amount to distribution?

In order to help the referring court (Swedish Supreme Court) decide on the background proceedings, the CJEU deemed it helpful to offer some guidance.

"As regards the determination of the purpose of the goods considered, account must be taken of all the factors which may demonstrate that the goods concerned are stored with a view to their being sold, without the rightholder’s consent, on the territory of the Member State where the motifs displayed on the goods are protected by copyright.

Although, among those factors, the distance between the storage facility and the place of sale may constitute evidence that can be used in seeking to establish that the goods concerned are intended to be sold in that place of sale, that evidence cannot, on its own, be decisive. It may, on the other hand, be taken into account in a concrete analysis of all the factors likely to be relevant, such as, for example, the regular restocking of the shop with goods from the storage facilities at issue, accounting elements, the volume of sales and orders as compared with the volume of stored goods, or current contracts of sale."

Comment

As discussed at the time when the Opinion was released, such a broad understanding of the concept of distribution is not surprising, both in light of existing case law and the overall approach to the definition of the scope of InfoSoc economic rights.

In particular, over time the CJEU has stressed the importance of granting a 'high level of protection', this being one of the key objectives underlying adoption of the InfoSoc Directive. Reliance on this has led - as an effect and invariably - to a broad understanding of the scope of copyright protection. The right of distribution is no exception.

[Originally published on The IPKat on 20 December 2018]

AG Hogan advises CJEU to rule that German press publishers' right is unenforceable

The new Irish AG, Gerard Hogan
One of the most controversial proposals in the draft Directive on copyright in the Digital Single Market is Article 11 [Katposts here], this being a provision that would introduce at the EU level a new related right in favour of press publishers.

The EU proposal follows legislation to a similar effect, which was adopted in Germany and Spain, though with different mechanisms: a new related right in the former, and an amendment to the quotation exception in the latter.

A few years ago (in 2013), Germany was in fact the first country in Europe to introduce a new related right in favour of press publishers. This is aimed at giving them control over third-party unlicensed use of their content. Legislation was adopted in an economic context - that of the press sector in Europe - of constantly declining revenue. 

Sections 87f-h of the German Copyright Act (UrhG) provide for a right of press publishers to exploit their content commercially for one year, thus preventing third parties from displaying excerpts of press content (other than single words and very short ones) without paying a fee.

The German press publishers' right is waivable, and apparently a significant number of publishers in Germany have decided to waive it in favour of indexation by news aggregation services like Google News (which became opt-in, rather than opt-out, in the immediate aftermath of the amendment to the UrhG).

As The IPKat reported [here and here], litigation has ensued in Germany over the actual enforceability of the right. In the context of litigation between the collecting society responsible to collect royalties in favour of publishers (VG Media) and Google, the latter has been arguing that the German right would not be enforceable because the German Government failed to notify the EU Commission of this initiative, as is instead required for 'technical regulation' under Article 8(1) of Directive 98/34Apparently the German Government failed to notify the Commission because of impending elections in Germany.

As early as 2015, Bo Vesterdorf (former president of what is now the General Court) argued that both the German and Spanish initiatives in favour of press publishers would be unenforceable due to their missed notification to the EU Commission. 

The court before which these proceedings are pending, the Landgericht Berlin, decided in 2017 to make a referral to the Court of Justice of the European Union (CJEU) and seek guidance on the very point of missed notification.

The case is now VG Media, C-299/17.

Earlier this week Advocate General (AG) Hogan issued his Opinion. He advised the CJEU to rule that - indeed - the German Government should have notified the Commission. Failure to comply with this obligation means that the right is unenforceable.

Let's see how the AG reasoned.


IPKat-approved stationery 

for notifications 
to the EU Commission
The German related right as a 'technical regulation'

The AG noted that the key provision to consider is the one in section 87g(4) UrhG, because this provision curtails or restricts the provision of services provided by internet search engines like Google:
It shall be permissible to make press products or parts thereof available to the public unless this is done by commercial operators of search engines or commercial operators of services which edit the content [...]
The AG drew an analogy with Berlington Hungary and Others, a case in which the CJEU held that Hungarian legislation which restricted the organization of certain games of chance to casinos would be a ‘technical regulation’ within the meaning of Article 1(11) of Directive 98/48 (which amended Directive 98/34) only insofar as it could significantly influence the nature of the products or the marketing of the products. That would be so in a case like the one at issue, because a prohibition on operating slot machines outside casinos could significantly influence the nature or the marketing of the products used in that context, which constitute goods that may be covered by Article 34 TFEU, by reducing the outlets in which they can be used.

According to the AG, in the present case the same could be said:
the provisions of Paragraphs 87f(1) and 87g(4) of the UrhG could have the effect of significantly affecting the nature or marketing of these internet services by exposing the operators of search engines to either a prohibitory order or a claim for damages where the internet search enables the reader to access more than a few words or a very short excerpt from the press product in question. It is striking that there is no similar prohibition or the potential of legal liability in the case of other members of the public (including commercial operators who do not come within the saving exception provided for in Paragraph 87g(4) of the UrhG) accessing or using this press product [this remark seems to suggest an impression, on the side of the AG, that the German legislation is not really aimed at operators other than Google: on this point, see further at para 38 of the Opinion]. A new legislative measure of this kind clearly has the potential to affect the provision of services for press products, thus potentially engaging the application of Article 56 TFEU. 
In these circumstances, I consider that Paragraphs 87f(1) and 87g(4) of the UrhG amount to a technical regulation within the meaning of Article 1(11) of Directive 98/34.
The AG also noted that, while copyright protection falls within the scope of Article 17(2) of the EU Charter of Fundamental Rights and EU legislation (including the Enforcement Directive) seeks to establish a 'high level of protection', this is not absolute. The CJEU has in fact clarified that, especially in the context of injunctive relief, the fundamental rights of others, including the freedom of an intermediary to conduct its own business (Article 16 of the Charter), must be also considered. All this requires a fair balance of different rights be achieved.

Having established that the German right could be considered as 'technical regulation', AG Hogan also found that it:
  • relates to what is described as 'information society services', ie, services provided for remuneration at a distance by electronic means and at the individual request of a recipient of services;
  • and is actually specifically aimed at them.
All this means that the German Government had a duty to notify the EU Commission.

Is the duty to notify a forbidden formality?

An interesting point of the Opinion relates to the argument, made by the Greek Government, that an obligation to notify a related right constitutes a formality contrary to Article 5(2) of the Berne ConventionArticle 9 TRIPS, and Article 3 WCT.

The AG rejected this very idea, for the simple reason that the duty of notification would not burden individual rightholders, but rather Member States:

While failure by a Member State to notify a draft technical regulation in accordance with Article 8(1) of Directive 98/34 can result in it being inapplicable, the pre-notification obligation is imposed on Member States, rather than on individual rightholders, and any analogy with the prohibition on subjecting the enjoyment and the exercise of rights to any formality seems to me to be highly artificial. There is, moreover, no ex ante exclusion of rules dealing with copyright from the scope of the notification obligations contained in Directive 98/34 and this may be contrasted with the manner in which, for example, rules in relation to the provision of telecommunications services and financial services are specifically excluded by Article 1(5) of Directive 98/34.
The rationale of the German right

The AG also discussed the aim underpinning the initiative of the German legislature. He accepted that the advent of the internet has deeply unsettled traditional business models:

It would be foolish and naïve not to recognise that the traditional commercial model of newspapers right throughout the Union — sales and advertising — has been undermined within the last 20 years by online reading of newspapers by consumers, which practice has in turn been facilitated by the advent of powerful search engines such as that operated by the defendant.
However, "none of this means, however, that a Member State is entitled to by-pass the notification requirements of Directive 98/34. Nor does the fact that notification of such a legislative proposal is required by the directive in itself mean that the draft legislation is necessarily defective or objectionable from the standpoint of the internal market."

Comment

Should the CJEU decide to follow the AG, the judgment would have formally important consequences as far as the German right is concerned. Substantially, the impact might not be too significant in Germany, given the fact that a significant number of publishers have been already waiving their right. Also at the EU level, that is in the context of the ongoing discussion surrounding Article 11, the outcome of this referral is unlikely to be felt too strongly, especially considering the technical character of the case and the fact that the AG appeared to accept the justifications given for the German initiative, which are the same given to support the introduction of this right at the EU level.

However, there are two points that may be made.

The first one relates to national law. As mentioned, also in Spain (though with a different mechanism) a legislative initiative aimed at pursuing the same objectives as of the German right was adopted, with the significant difference that - unlike what is the case in Germany - the Spanish entitlement to 'fair compensation' cannot be waived. Currently, Google News is not available in this country. Yet, as mentioned above, also in the case of Spain the Government failed to notify the EU Commission. Should the CJEU rule in VG Media in the way suggested by AG Hogan, then also the Spanish legislation could be deemed unenforceable.

The second point relates to the Article 11 in the draft EU directive, and is one of policy approaches to law-making. Whilst it is true that the wording of the provision - in its various versions - does not appear to target specifically any subjects (as it appears to be instead the case of the German right, at least according to the AG), one might wonder: (1) whether, substantially, that is instead the case and, if so (2) whether it is 'striking' (to use the adjective employed by AG Hogan) of legislation (even at the EU level) that - instead of being general - is meant for certain subjects in particular, or certain subjects more than others ...


[Originally published on The IPKat on 16 December 2018]

Friday, 14 December 2018

The AG Opinion in Metall auf Metall: it's not a fundamental rights violation to say that sampling requires a licence

Moses Pelham
Earlier this week The IPKat reported that Advocate General (AG) Szpunar has now issued his (non-insubstantial: 100 paragraphs) Opinion in Pelham, C-476/17 (the Metall auf Metall case). As readers know, this referral from Germany is asking the Court of Justice of the European Union (CJEU) to provide guidance on the lawfulness of unlicensed sampling.

Sampling is the taking of the sounds fixed in a phonogram in order to incorporate them into a new phonogram that contains a new work: here's an example in which Italian hip hop artist Mondo Marcio realized an entire album, where each track samples (with a licence) from iconic 1960s singer Mina.

It has to be said that, in the immediate aftermath of its release, commentators appeared rather disappointed with the Opinion, which recommends the CJEU to rule that unlicensed sampling may be a copyright infringement.

Having now had a chance to read the full text, in my view (or own - much more modest - Opinion) these criticisms are excessive. The reasoning of the AG is in fact in line with the interpretation of EU copyright rules as consistently provided by the CJEU over the past few years; as regards the fundamental rights aspect, the Opinion is important because it shows the need for a careful - rather than ideological - weighting of different rights which are potentially in conflict with each other.

Let's see a bit more in detail how the AG reasoned.

Sampling as reproduction under the InfoSoc Directive

The first issue to address related to whether the concept of 'reproduction in part' in Article 2 of the InfoSoc Directive should be intended as also encompassing the taking of part of a phonogram for inclusion in another phonogram.

To answer this question, the AG recalled that in Infopaq the CJEU did not set a quantitive threshold [this is a welcome clarification, as it is at times suggested that in that case the CJEU said that, if you copy less than 11 words, ie the amount at issue in the background Danish proceedings, then that is not a reproduction: the CJEU never stated that]. What the CJEU did say was that:
  • Individual words are not protected, because they are not (literary) works;
  • A part of a work is entitled to the same protection as the whole, insofar as that part is sufficiently original in the sense that it is its author's own intellectual creation.
According to the AG, this finding is "obvious":
the author of a literary work cannot appropriate common words or expressions, in the same way that a composer cannot claim an exclusive right over the notes or a painter a right over the colours. However, this in no way constitutes recognition of a de minimis threshold in the protection of works by copyright, but is simply the result of the definition of the work, within the meaning of copyright, as an intellectual creation of the author of the work. 
The same reasoning cannot however apply to phonograms: while it is incorrect to think (as some of the interveners argued) of a quantitative threshold to protection, in the sense that only fragments long enough to represent the investment made by producers should be entitled to it, it should be noted that a phonogram is not subject to any originality requirement. This is a distinction that might appear odd (it did appear odd to me when I first encountered it in relation to UK copyright with 'content copyrights' and 'signal copyrights', on which see an application in Tixdaq here). However, in the context of phonograms and sampling, it clarifies what copyright protects and what it does not: while anyone is free to reproduce parts of a musical work that are not protected as copyright works or parts thereof, the same is not true for a recording of that work. 

So, this might mean that, while these 4 chords might be used by anyone, the same would not be true for the phonograms that include a recording of the chords. The same would be the case for the recording of a work that is now in the public domain, eg of La Primavera by Vivaldi.


Although the rights of producers of phonograms are rights related to copyright, they are not, however, derived rights. Accordingly, the scope of protection of a phonogram is in no way subject to the scope of protection of the work that it may possibly contain.
"I thought they were free samples!"
It follows that the protection granted to phonogram producers is not limited to those parts of the phonogram that constitute a substantial part of it: in this sense, any analogy with the Database Directive and the sui generis database right, should be one a contrario. This interpretation would be confirmed by Article 11 of the WIPO Performances and Phonograms Treaty, as derived from Article 10 of the Rome Convention.

In conclusion, any sampling of a recording might be considered a reproduction under the InfoSoc Directive.

Is the phonogram that contains the sample a copy of the phonogram sampled ... for the sake of the right of distribution in the Rental and Lending Rights Directive?

The second question is vaguely more esoteric: it is whether the phonogram that contains the sample can be regarded as a 'copy' of the first recording within Article 9(1)(b) of the Rental and Lending Rights Directive. The issue here, however, is not about reproduction (as one might think): rather it is about the concept of 'copy' for the sake of the right of distribution (hence, the esotericism ...).

The AG noted that that provision should be interpreted in light of the objectives of the directive in which it is included, which in this case are protection against 'piracy'. What Article 9 protects is the right of producers not to have unlawful copies of their phonograms placed on the market. In this sense, and in light of the Geneva Convention, the meaning of 'copy' must be intended as referred to the whole of a phonogram, not part of it. In this sense, it is narrower than the concept of 'copy' in the InfoSoc Directive.
Sampling is not used to produce a phonogram that replaces the original phonogram, but to create a new work independent of that phonogram. In the same way, a phonogram created through sampling does not incorporate all or a substantial part of the sounds of the original phonogram. Such a phonogram should not therefore be classified as a copy within the meaning of Article 9(1)(b) of Directive 2006/115.
Is sampling protected as German free use or as a quotation?

The answers to these questions, together with the one on fundamental rights one (see in what follows), are those that have likely caused the highest level of concern among initial commentators.

Should sampling be regarded as an act of reproduction, the German court is asking in fact whether unlicensed sampling might be nonetheless shielded from liability due to it being considered a 'free use' under German law or a 'quotation' under Article 5(3)(d) of the InfoSoc Directive.

With regard to German free use ("An independent work, created in the free use of the work of another person, may be published and exploited without the consent of the author of the work used."), the AG considered it only relevant with regard to the InfoSoc Directive and noted how this piece of EU legislation sets an exhaustive list of available exceptions and limitations. This means that Member States cannot go beyond that list, and something like the German provision:
  • would not be 'saved' by the grandfather clause in Article 5(3)(o). That would be so because, first, what the German provision covers is neither limited to "certain ... cases of minor importance" nor does it only apply to analogue uses of protected subject matter. 
  • would be also contrary to the three-step test in Article 5(5).
Turning to quotation, the AG did not refer expressly to what, as of today, remains the most relevant CJEU case in this area: Painer. However, he noted that a quotation:
  • does not have to be limited to certain types of works only, and can only encompass extracts of phonograms;
  • does need to be "for purposes such as criticism or review’". Use of the phrase 'such as' does not mean that only criticism or review are acceptable purposes of a quotation, but is in any case indicative that "the quotation must enter into some kind of dialogue with the work quoted. Whether in confrontation, as a tribute to or in any other way, interaction between the quoting work and the work quoted is necessary." [the same, the AG noted, would be the case should one consider the parody exception instead];
  • must be unaltered and distinguishable from the work in which it is incorporated;
  • must indicate the source of the quotation (unless this is impossible).
Accordingly,
Sampling in general, and the use of the phonogram at issue in the main proceedings in particular, do not satisfy those conditions. The aim of sampling is not to enter into dialogue with, be used for comparative purposes, or pay tribute to the works used. Sampling is the act of taking extracts from other phonograms, which are used as raw materials, to be included in new works to form integral and unrecognisable parts. Moreover, those extracts are often modified and mixed in such a way that all original integrity is lost. It is not therefore a form of interaction but rather a form of appropriation. The case in point, where an extract from a phonogram — too short to allow any interaction — is repeated in a loop throughout the new phonogram for use as the rhythm section, is a perfect illustration. 
Is there a human right to sample?

The final question is asking whether copyright protection in the phonogram might be trumped by the need to safeguard the freedom of (artistic) expression of the person who samples under Article 13 of the EU Charter of Fundamental Rights.

The AG noted how, prima facie, an opposition between copyright and freedom of artistic protection might seem paradoxical. In addition, freedom of artistic expression is not limitless and should be understood in its appropriate context:
Freedom of expression, from which the freedom of the arts emanates, concerns above all obtaining and disseminating ideas and information and, consequently, as regards art, the content of works. It is the censorship of that content which is particularly likely to lead to a violation of the freedom of the arts. I take the view, however, that the freedom of artists is less extensive so far as concerns acquiring the means of their creation. Artists must adapt to societal living conditions and the situation of the market on which they operate. The freedom of the arts does not free artists from the constraints of everyday life. Is it conceivable for a painter to rely on his freedom of creation so as not to pay for his paint and paintbrushes?  
It is true that, in musical genres such as hip hop or rap, sampling plays a special role which provides not only the means of creation, but also constitutes an artistic process in itself. However, this cannot be a decisive argument in the legal discussion, since the interpretation of rules of law must be the same for all. If the sampling of extracts of phonograms without the authorisation of the rightholder were considered lawful, that would be true for hip hop artists as well as all other musicians.
In conclusion:
freedom of the arts cannot guarantee the possibility of free use of whatever is wanted for creative purposes.
Cariou v Prince
Comment

As mentioned in the opening of this post, the AG Opinion appears in line with the current EU copyright framework and - importantly - it reiterates the need to consider that the balancing of different fundamental rights is a complex exercise which needs to be undertaken when designing relevant exceptions and limitations, implementing EU provisions into national law (including optional ones, like exceptions and limitation), and applying the law to specific situations.

Above all, the weighing of different rights and interests in specific cases should consider all relevant circumstances: in this sense, the outcome of assessment in a case like the one in the Afghanistan Papers case might be different from, eg, sampling of musical content.

In the art field, should the Court decide to follow the AG, one might wonder about the implications, not just for sampling in the music sector, but also, eg, for appropriation art. In this sense, it would be interesting to think of how a case like Cariou v Prince (in which the appropriation by the defendant of most of the works of the plaintiff was considered 'fair use') would be decided by using the perspective of AG Szpunar in Pelham and considering the EU copyright framework instead of the US one.

Let's now see what the CJEU thinks ...

[Originally published on The IPKat on 14 December 2018]