Sampling and copyright infringement

The field of intellectual property is extremely wide, it includes everything called “intellectual works”, including patents, trademark law, copyright etc. Intellectual property is protected as much by European Union law as by the national rules of the member states. But the European institutions wanted to create a general framework common to all the Member States of the European Union in order to approximate national laws on intellectual property and more specifically on copyright. This is why the directive 2001 was adopted. / 29 / CE of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society has introduced copyright protection at European level and above all a harmonization of the laws of the member states. It is in particular provided in Article 2 thereof that the copyright implies the exclusive right for the authors of a work to authorize or prohibit the reproduction of their works.

However, the question arises as to whether the protection concerns the entire work or each part of the work: is it possible to invoke copyright infringement in the event of appropriation by a third party? ‘part of his work?

On July 29, 2019, the CJEU issued a stop regarding sampling [1] and the appropriation, for artistic purposes, of part of the soundtrack of a phonogram [2] . This dispute pitted the German music group Hütter and others against the Pelham company. The group claimed that the company copied a rhythmic sequence from one of their phonograms in order to integrate it, in successive repetitions, into the title Nur mir using the technique of sampling. Hütter and others considered that this act constituted a violation of the neighboring right to the copyright which they own as a producer of phonograms as well as a violation of the intellectual property rights which they hold as performers as well as the Mr. Hütter’s copyright in the musical work.

Harmonization of certain aspects of copyright and neighboring rights

Several issues arose during this affair. The first question which arose was as follows: “ Is there an infringement of the exclusive right of the producer of phonograms to the reproduction of his phonogram under Article 2 (c) of the directive 2001/29, when tiny snippets of sound are extracted from its phonogram to be transferred to another phonogram? ”.

First, the European judges recall that, in principle, Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society confers on the producer of the phonogram an exclusive right to authorize or prohibit the reproduction of his work, this right implying that he has the possibility “ to oppose the taking by a third party of a sound sample, even very brief, of his phonogram for the purposes of the inclusion of this sample in another phonogram. ”. However, the following problem arose: how to define the notion of “reproduction”? Indeed, the directive does not define what “reproduction” is, so the judges clarified its meaning and scope. The Court noted that the copy of a simple sound sample, even a very brief one, constitutes a reproduction within the meaning of Directive 2001/29 and therefore falls under the exclusive right of the producer of the phonogram who may refuse the reproduction of his work. This interpretation is geared towards the objective of establishing a high level of protection of copyright and neighboring rights, but also aims to protect an investment.

However, the judges specified a limit to this”Reproduction”: “ when a user, in the exercise of the freedom of the arts, takes a sound sample from a phonogram, in order to use it, in a modified form which cannot be recognized by listening, in a new work, it must be considered that such use does not constitute a “reproduction” “. Thus, the CJEU underlined the need to find a fair balance between the interest of the owners of copyright and neighboring rights in the protection of their intellectual property rights (guaranteed by article 13 of the Charter of Fundamental Rights of the European Union ) and, the protection of fundamental rights of users of protected objects, including freedom of the arts, and of the general interest.

This implies that if a user takes a sound sample from a phonogram, in the exercise of his freedom of the arts, in order to use it in a modified form that cannot be recognized when listening to a new work, the reproduction will not be characterized within the meaning of Directive 2001/29. On the contrary, a medium which reproduces all or a considerable part of the sounds of the phonogram constitutes a copy of it, therefore the producer of the phonogram could object to it.

“ the action of member states is not entirely determined by Union law “

Another issue which has arisen is whether the Member States can provide for a provision which specifies that the field of protection of the exclusive right of the producer of phonograms to the reproduction of his phonogram is inherently limited in that A separate work, created by the free use of its phonogram, can be exploited without its consent.

The CJEU recalled that the limitations and exceptions provided for by Union law were established in order to guarantee the proper functioning of the internal market in the field of copyright and related rights. Accordingly, German law provides that an “ independent work which has been created freely using the work of others may be published and exploited without the permission of the author of the work used </ em >. “Does not comply with European Union law. Thus, the European judges consider “ that a Member State cannot provide, in its national law, for an exception or a limitation to the right of the producer of phonograms provided for in Article 2, sub c) of Directive 2001 / 29, other than those provided for in Article 5 of that directive. “

However, the Court specified that “ the action of the Member States is not entirely determined by the law of the Union “, consequently, the Member States have the possibility of applying national standards for the protection of fundamental rights, provided that they do not compromise the level of protection provided for by the Charter of Fundamental Rights.

The harmonization of certain aspects of copyright and related rights in the information society

This case law finds an impact in French law. Indeed, the French judges have already had the opportunity to rule on the question of the reconciliation of copyright with the right of artistic freedom (TGI Paris, July 5, 2000, Cooper v / Sté Ogilvy & amp; Mathe) . The case law has not upheld the violation of copyright and neighboring rights by taking a sound sample of a phonogram when it is no longer recognizable in the new recording. The judges of the TGI de Paris held that “ computer-assisted musical composition, since it involves human intervention, of the choice of the author […] leads to the creation of original works </ em > ”. This decision was supplemented by a judgment of the Court of Appeal of Bordeaux, January 31, 2005 (n ° 03/05512) which added “ that a work of the same mind created from a computer system can benefit from the rules protecting copyright, on condition that it reveals, even in a minimal way, the originality that its designer wanted to bring ”.

In principle, in French law, article L113-2 of the Intellectual Property Code provides that “Is called composite the new work to which is incorporated a pre-existing work without the collaboration of the author of the latter. ”. As such, the use of part of a work would require the authorization of the owner of copyright and related rights, yet French law provides for the exception of “short citations” in article L122- 5 of the Intellectual Property Code: “ Analyzes and short quotes justified by the critical, controversial, educational, scientific or informational nature of the work in which they are incorporated “. Four conditions must be met for this exception to be retained, but the sample has an artistic purpose and does not meet these criteria in any way, we can therefore see that the short French quote is more restrictive than that posed by article 5.2 [3] of Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society.

Unlike French law, Irish law has transcribed into legislation the limits of copyright and its neighboring rights. Section 52 (4) of the Copyright Act 2000 is provided for and related rights only as a matter of principle “ The copyright in a work is not infringed by its incidental inclusion in another work. “. But it is necessary to define what is a work included in an accessory way, the legislator defines this concept in a negative way: “ A work is not considered as included in an accessory way in another work when it is included in a manner which unreasonably prejudices the interests of the copyright owner. ”. This therefore implies that when a person wishes to use sampling, he must do so in a certain way that does not infringe the copyright of the holder, for example the sound used must not be so present that users confuse the initial work with that of the third party who used it incidentally.

The last paragraph of section 52 (4) provides that “ The copyright in a work which has been lawfully made available to the public is not infringed by the use of quotations or excerpts from the work, when such use does not prejudice the interests of the owner of the copyright in that work and the use is accompanied by sufficient recognition. ”. This implies that anyone who uses part of another’s work must mean the person who owns the copyright in it. It therefore seems that we find in Irish law the approach adopted by the judges of the European Union and that sampling will not be penalized if it does not harm the interests of the author, it will be in particular the case if the work is not recognizable by users.

Eternoscorp remains at your disposal to allow you to use all the works which are necessary for you in the respect of the copyright of the holder as well as to enforce your intellectual property rights in the event of violation of these by a third party.

[1] Sampling is a technique consisting in taking, using electronic equipment, extracts of a phonogram in order to use them as elements of a new composition in another phonogram.

[2] A phonogram is a device which makes it possible to record in the form of a trace the vibrations produced by the voice, or more generally , a sound.

[3] “ 2. Member States have the option of providing for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:

1. a) in the case of reproductions made on paper or on a similar medium by means of any photographic technique or any other process having similar effects, with the exception of scores, provided that the rights holders receive fair compensation;
2. b) in the case of reproductions made in any medium by a natural person for private use and for purposes not directly or indirectly commercial, provided that the rightholders receive fair compensation which take into account the application or non-application of the technical measures referred to in Article 6 to the works or objects concerned;
3. c) in the case of specific acts of reproduction carried out by publicly accessible libraries, educational establishments or museums or by archives, which do not seek any direct commercial or economic advantage or indirect;
4. (d) in the case of ephemeral recordings of works made by broadcasting organizations by their own means and for their own broadcasts; the preservation of these recordings in the official archives may be authorized because of their exceptional documentary value;
5. e) with regard to the reproduction of broadcasts made byNonprofit social institutions, such as hospitals or prisons, provided that rights holders receive fair compensation. “