German electronic band Kraftwerk's 1970s song “Metall auf Metall” might have been consigned to music history, but use of a sample in a 1997 rap release led to a 20-year legal battle. The top EU court has now given its ruling on whether Kraftwerk's rights were infringed. What does this court decision tell us about sampling and European law?
Is a two second sample protected?
Reproduction of a sound sample, even if it is very short, falls within the exclusive control of the IP right owner. (Note that the IP right involved here is not strictly copyright, but a related right that controls the reproduction of round recordings.) Why?
- The stated objective of the EU's Information Society Copyright Directive (2001/29/EC) is to give a high level of protection to right holders.
- The Directive allows right holders to control reproduction of their recordings in order to protect costly investment in sound recording activity.
Is a modified sample protected?
Taking a sample and using it in a modified form that is unrecognisable to the ear is not reproduction. Why?
- This involves a balancing act between the intellectual property of the right holder and the need to protect the freedom of the arts and freedom of expression. Copyrights and related rights are not absolute - where necessary these are to be weighed against other fundamental rights and freedoms. Sampling is a form of artistic expression that merits its own protection.
- Modifying the sample so that it is no longer recognisable would not interfere with the right holder's return on investment and shifts the balance in favour of the person using the sample.
No additional country-by-country exceptions
EU law sets out the exceptions to copyright in detail. It is intended to create a level playing field across all 28 member states. Allowing any more exceptions or limitations would undermine this consistency. So the German rule that permits sampling for use in a new creative work is illegal.
Can sampling fall within the “quotation” exception?
One of the EU-wide exceptions to copyright infringement is quotation of a protected work. But this does not help a user of a short sample. Why?
The quotation exception is intended to enable illustration of an assertion, defending an opinion or allowing an intellectual comparison between the work and the user's point of view – essentially "entering into a dialogue" with the quoted work. It is possible for the “quotation” exception to apply to sampling, but not where you cannot identify the source work.
What does it mean?
Following soon after the introduction into EU law of new laws on user-uploaded content and the publisher's right in the controversial Digital Copyright Directive, this decision might be seen another example of the dampening effect of European law on new modes of creativity. But the law on sampling is a developing area with a lot of uncertainty in other countries too. Users will always be safer if they obtain permission first. At least the case gives some clearer guidance on how the law works in the EU.