In its judgment C-476/17, delivered on 29 July, the Court of Justice of the European Union ruled that "the reproduction by a user of a sound sample, even if very short, taken from a phonogram must, in principle, be regarded as a reproduction". However, the Court asserts the " fair balance " between the interests of the holders of copyright and the protection of the interests and fundamental rights of users of protected subject matter enshrined in the Charter of Fundamental Rights, and points out that "where a user takes a sound sample from a phonogram and uses it in a ‘modified form unrecognisable to the ear in another phonogram’ it is not a ‘reproduction’".
The CJEU thus answers the preliminary questions of Germany’s Federal Court of Justice ('the Bundesgerichtshof’) called upon to arbitrate the dispute raised by Pelham GmbH, Moses Pelham and Martin Haas, copyright holders of an integrated rhythmic sequence used without authorisation by Ralf Hütter and Florian Schneider-Esleben through a two-second ‘sampling’ aimed at developing another phonogram. Thus, the piece covered by the 'sampling’ technique does not constitute a copy since it is limited to embodying modified samples to create a new and distinct work, according to the CJEU.
Considering the exhaustiveness of EU law as regards exceptions and limitations to the rights of holders, the Court also rules that the specific provisions of German legislation are not in conformity with EU law. Indeed, even if Member States may apply national standards for the protection of fundamental rights with regard to the Charter, the CJEU precludes such application where there is a full harmonisation measure, such as that introduced by the exclusive reproduction right of phonogram producers (Directive 2001/29/EC 'harmonisation of copyright and related rights' and Directive 2006/115/EC 'rental and lending right on certain rights related to copyright').
In addition, the CJEU notes that the use of a sound sample may, under certain conditions, constitute a quotation, provided that the original work is recognisable or interacts with the work, but "does not constitute such a quotation in the use of this sample when it is not possible to identify the work as cause ". (Original version in French by Martin Molko – intern)