German Courts Brand 2 (Very Important) Copyright References To The Cjeu

Eleonora Rosati writing on the IPKat

This morn the Bundesgerichtshof (BGH, the High German Federal Court of Justice) has referred non i - but 2 - copyright cases to the Court of Justice of the European Union (CJEU) for guidance, respectively, on:

• To what extent European Union copyright allows sampling, ie the taking of business office of a audio recording for re-use every bit an musical instrument or audio recording inwards a unlike vocal or piece [readers alongside an involvement inwards hip-hop volition know that sampling inwards this genre is real frequent in addition to inwards the United States of America has caused quite a few IP-related headaches to the likes of Kanye West and Jay Z]; and
• What purpose key rights play inwards the copyright sphere. More specifically, what is the human relationship betwixt copyright protection, liberty of the press, in addition to liberty of information?

WARNING: I practise non verbalize German, in addition to convey tried to brand a feel of these novel cases yesteryear reading the relevant press releases; delight allow me know if I convey misunderstood anything.

Sampling, costless use, a 'right' to quote, in addition to key rights

The get-go reference (I ZR 115/16 - Metal auf metallic III) has been made inwards the context the longstanding in addition to complex [at some betoken the illustration fifty-fifty ended upwardly inwards front end of the High German Constitutional Court] Metall auf Metall litigation concerning the unauthorised sampling by music producer Moses Pelham of a 2-second rhythmic sequence from Kraftwerk's 1977 song 'Metall auf Metall' for work inwards his ain 1997 'Nur Mir'. The sample features inwards 'Nur Mir' (performed yesteryear Sabrina Setlur) every bit a continuous background loop.

Following a number of lower courts' decisions [the get-go i was issued inwards 2004], every bit good every bit the already mentioned instalment before the Constitutional Court, the illustration is at i time pending before the BGH.

Today, this courtroom decided to rest the proceedings in addition to attempt guidance from the CJEU on the right interpretation of European Union law. More specifically - in addition to every bit explained inwards the relevant press release - the BGH is asking:

• Guidance on the notion of reproduction in part in relation to phonograms every bit per Article 2(c) of the InfoSoc Directive [readers volition retrieve that the CJEU has already interpreted generously the notion of 'reproduction inwards part' inwards its seminal determination in Infopaq] in guild to determine whether a 2-second sample may autumn inside the reach of the right of reproduction; and 
• whether a phonogram sampling an before phonogram is a re-create of it inside the pregnant of Article 9(1)(b) of the Rental in addition to Lending Rights Directive.

Moses Pelham

Should the answer endure inwards the affirmative, hence the BGH is asking:

• Whether the widely discussed High German 'free use' exception inside Section 24(1) of the German Copyright Act ("An independent work, created inwards the costless work of the operate of some other person, may endure published in addition to exploited without the consent of the writer of the operate used.") is compatible alongside European Union law; 
• Should the defendants endure unable to rely on the 'free use' exception, whether the quotation exception inside Article 5(3)(d) of the InfoSoc Directive mightiness withal shield them from liability [readers alongside an involvement inwards this defence forcefulness volition endure aware that at that spot is hardly an European Union quotation exception, every bit unlike Member States convey transposed Article 5(3)(d) inwards real unlike ways: come across for instance this discussion of whether GIFs could endure regarded every bit quotations]. In particular, the defendants inwards the national proceedings are tilt that quotation is a 'right', rather than but an exception. Although I am alone relying on the press release, I suspect that the defendants' declaration mightiness endure also based on the linguistic communication of Article 10(1) of the Berne Convention, which - peculiarly inwards its French version - seems to advise a mandatory quotation exception [see further here, pp nineteen ff];
• What purpose the rights granted yesteryear the Charter of Fundamental Rights of the European Union plays: inwards particular, what is the human relationship betwixt copyright protection (Article 17(2)) in addition to liberty of the arts (Article 13)? 

Can liberty of the press in addition to liberty of information trump copyright protection?

The instant reference (I ZR 139/15 - Afghanistan Papiere) has been made in the context of litigation betwixt the High German Government in addition to High German newspaper WAZ over the unauthorised publication yesteryear the latter of the hence called 'Afghanistan Papers', ie confidential armed forces reports on the operations of the Federal Republic of Federal Republic of Germany armed forces inwards the percentage inwards the menstruum 2005-2012.

According to the relevant press release, the BGH has stayed the proceedings in addition to asked the CJEU to clarify whether in addition to to what extent the assessment of prima facie copyright infringement in addition to the applicability of the exceptions inwards favour of the press (Article 5(3)(c) of the InfoSoc Directive) in addition to for quotation (Article 5(3)(d) of the same directive) is informed yesteryear a key rights analysis. 

In particular, tin copyright protection bet trumped yesteryear the demand to safeguard liberty of the press in addition to liberty of information? Or tin key rights endure fifty-fifty straight invoked to forestall enforcement of copyright?

There is belike no demand to banking concern annotation that this query goes to the real pump of copyright protection, in addition to volition revive the longstanding give-and-take around the reach of protection. 

Posted By Eleonora Rosati to The IPKat on 6/01/2017 02:11:00 pm. Background tin endure works life here: http://www.musiclawupdates.com/?p=5257