Taking a phonogram extract for use, without the authorisation of its producer, in another phonogram (sampling) constitutes an infringement of that producer's exclusive right to authorise or prohibit a reproduction of its phonogram, according to the Opinion of Advocate General Szpunar delivered on Wednesday 12 December in the Pelham case (C-476/17).
In this case, German musicians created a piece of which two seconds were copied and repeated by other musicians, who had not requested the permission of the former.
In particular, the members of the first group requested the cessation of the infringement and the award of damages before the German Federal Court of Justice, which turned to the Court of Justice of the European Union (ECJ) for a number of preliminary questions.
The phonogram (in this case, the two seconds of sound at issue) is defined by the Advocate General as a "fixation of sound" which, as such, must be protected as an "indivisible whole" granting an "exclusive right" to the producer, as related to rights of copyright. This right to the protection of the phonogram is seen by the Advocate General as distinct from the right to the protection of the work it may contain.
A sample cannot, however, be regarded as a copy of a phonogram in that it does not incorporate "all or a substantial part" of the original phonogram and is not intended to "replace lawful copies", according to the Advocate General on the basis of Directive 2006/115.
Mr Szpunar also considers that the set of possible limitations to the exclusive rights of phonogram producers set out in Directive 2001/29 is exhaustive. The provision under German law allowing the free use of a phonogram to create an independent work would therefore be incompatible with European law.
The Advocate General refuses to apply in this case the "citation exception" provided for by the same directive, since he does not discern any "apparent intention to interact with the first phonogram" or any insertion of the latter in a manner "distinguishable from the rest of the second phonogram".
Finally, Mr Szpunar considers that "the fact of having to obtain a licence for a use such as that in question does not restrict the freedom of the arts (enshrined in the EU Charter of Fundamental Rights) to an extent that would exceed the normal constraints of the market". (Original version in French by Mathieu Solal)