Copyright - Kraftwerk v Pelham

Landgericht Hamburg

Licence CC BY 2.5

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Jane Lambert

Court of Justice of the Europen Union (Presifdebt Lenaerts, President, Judges Arabadjiev, Vilaras, von Danwitz, Toader, Biltgen and Lycourgos, Presidents of Chambers, Juhász, Ilešič (Rapporteur), Bay Larsen and Rodin) Case 476/17 Hütter and another b Pelham and others  [2019] EUECJ C-476/17, EU:C:2019:624, [2019] WLR(D) 439, ECLI:EU:C:2019:624

Can the reproduction of a 2-second rhythm sequence from a 1977 sound recording infringe copyright, performers' rights or other intellectual property rights?  The Landgericht (court of first instance) for Hamburg thought it did on two occasions as did the regional court of appeal. The German Supreme Court and Constitutional Court were less sure. Finding that the case turned on the interpretation of arts 2 (c) and 5 (3) (d) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society OJ L 167, 22.6.200 and of arts  9 (1) (b) and 10 (2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version) OJ L 376, 27.12.2006, p. 28–35, the German Supreme Court referred the questions listed below to the Court of Justice of the European Communities under art 267 of the Treaty on the Functioning of the European Union.

The Parties
The claimants were members of the band Kraftwerk which means "power station" in German. In 1977 they released Metall auf Metall which was written by Ralf Hütter as part of the Trans Europe Express album. Many years later, the composer and rapper Moses Pelham was accused of lifting the 2-second rhythm sequence from Metall auf Metall and reproducing it without permission in Nur mir.

The Action
Mr Hütter and Mr Florian Schneider‑Esleben sued Mr Pelham and his company Pelham GmbH for copyright infringement, infringement of performers' rights and unfair competition in the Hamburg Landgericht.  The procedural history is set out ar paragraph [19] of the Court of Justice's judgment:

"That court upheld the action, and Pelham’s appeal before the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) was dismissed. Following an appeal on a point of law (Revision) brought by Pelham before the Bundesgerichtshof (Federal Court of Justice, Germany), the judgment of the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) was overturned and the case was referred back to that court for re-examination. That court dismissed Pelham’s appeal a second time. In a judgment of 13 December 2012, the Bundesgerichtshof (Federal Court of Justice) once again dismissed Pelham’s appeal on a point of law. That judgment was overturned by the Bundesverfassungsgericht (Federal Constitutional Court, Germany), which referred the case back to the referring court."

The Questions
Realizing that the outcome of the proceedings depended on the interpretation of the above-mentioned provisions of Directive  2001/29/EC and Directive 2006/115/EC the Supreme Court referred the following questions to the Court of Justice:

‘(1) Is there an infringement of the phonogram producer’s exclusive right under Article 2(c) of Directive 2001/29 to reproduce its phonogram if very short audio snatches are taken from its phonogram and transferred to another phonogram?
(2) Is a phonogram which contains very short audio snatches transferred from another phonogram a copy of the other phonogram within the meaning of Article 9(1)(b) of Directive 2006/115?
(3) Can the Member States enact a provision which — in the manner of Paragraph 24(1) of [the UrhG] — inherently limits the scope of protection of the phonogram producer’s exclusive right to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram in such a way that an independent work created in free use of its phonogram may be exploited without the phonogram producer’s consent?
(4) Can it be said that a work or other subject matter is being used for quotation purposes within the meaning of Article 5(3)(d) of Directive 2001/29 if it is not evident that another person’s work or another person’s subject matter is being used?
(5) Do the provisions of EU law on the reproduction right and the distribution right of the phonogram producer (Article 2(c) of Directive 2001/29 and Article 9(1)(b) of Directive 2006/115) and the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and the first paragraph of Article 10(2) of Directive 2006/115) allow any latitude in terms of implementation in national law?
(6) In what way are the fundamental rights set out in [the Charter] to be taken into account when ascertaining the scope of protection of the exclusive right of the phonogram producer to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram and the scope of the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and the first paragraph of Article 10(2) of Directive 2006/115)?’

Directive 2001/29/EC
Art 2 (c) provides:

"Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:
..................
(c) for phonogram producers, of their phonograms;
.............."

That right is subject to a number of exceptions one of which is set out in art 5 (3) (d):

"quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose."

Directive 2005/115/EC
Art 9 (1) requires member states to "provide the exclusive right to make available to the public, by sale or otherwise, the objects indicated in points (a) to (d), including copies thereof, hereinafter ‘the distribution right’"  Those exclusive rights include in paragraph (b) an exclusive distribution right for phonogram producers, in respect of their phonograms.   That right is subject to art 10 (2):

"Irrespective of paragraph 1, any Member State may provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms, broadcasting organisations and of producers of the first fixations of films, as it provides for in connection with the protection of copyright in literary and artistic works."

The Answers
The Court addressed the first and sixth questions together and then took the second, third, fourth and fifth in numerical order.

It discussed the first and sixth questions between paragraphs [26] and [39] of its judgment and ruled:

"Article 2(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must, in the light of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear."

It addressed the second question between paragraphs [40] and [55] and said:

"Article 9(1)(b) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram does not constitute a ‘copy’, within the meaning of that provision, of that phonogram, since it does not reproduce all or a substantial part of that phonogram."

The Court discussed the third question between paragraphs [56] and [65] and held that:

"A Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of that directive."

The fourth question was discussed between paragraphs [66] and [74] and answered as follows:

"Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question."

The fifth question was considered between paragraphs [75] and [86] and answered as follows:

"Article 2(c) of Directive 2001/29 must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law."

Comment
How those answers will assist the German Supreme Court to resolve the issues in dispute is anyone's guess.  The answer to the second question seems to contradict the answer to the first and second.   I await its judgment with bated breath. 

Had this case arisen in England the issue would have on whether the sample was a substantial part of Metall auf Metall.  I doubt if any judge would have entertained a defence under s.30 of the Copyright, Designs and Patents Act 1988. The fact that it was very short does not mean that it was not a "substantial part" within the meaning of s.16 (3) (a) of the 1988 Act.  As Mr Justice Graham said in Exxon Corporation v Exxon Insurance Consultants Ltd   [1981] FSR 238 at 248:

"At the risk of losing my way in the “tulgey wood” and becoming bogged in the “slithy toves,” my view can perhaps best be illustrated by consideration of Lewis Carroll's fantasy “ Jabberwocky .” The whole poem was, during the appropriate period, undoubtedly properly part of Lewis Carroll's copyright in the book “ Through the Looking Glass .” As such, the poem itself, if copied, would certainly be regarded as an infringement of the copyright in the book. The poem, it will be remembered, “seemed very pretty” to Alice, but was “rather hard to understand.” The subject, as illustrated so vividly in John Tenniel's drawings, was the awesome Jabberwock, an invented monster with an invented name. The title of the poem, “Jabberwocky” with a “y” at the end, seems to be used by the author adjectivally to mean a story about a Jabberwock. Undoubtedly the whole composition of the poem and the suggestive and invented words which form its essence and make it so memorable is, just as in the “code” cases, worthy of copyright, and that copyright could properly be held to be infringed by the copying to a greater or lesser extent, as the case might be, of its invented words.
Assuming the poem had been recently written and was the subject of the 1911 or 1956 Act, it is I suppose just conceivable that the use in some literary context of either of the single words “Jabberwock” or “Jabberwocky” alone might also be held to be an infringement as being a substantial part of the whole poem. "

Further Information
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