Phonogram producers can prevent sampling
The German Federal Court of Justice (BGH) recently brought an end to a more than 20-year long saga in the “Metall auf Metall IV” case. In its decision (available here, in German), the BGH decided that reproduction of two-second sound samples infringes the related right of reproduction of phonogram producers.
The dispute began in 1997 when the company Pelham used two-second sound samples from Kraftwerk’s “Metall auf Metall” soundtrack to produce the “Nur mir” song. Kraftwerk, as the producer of the phonogram, on which “Metall auf Metall” was originally recorded, filed suit, claiming that Pelham infringed its related right to reproduction. The case made its way all up to the BGH, which sought clarification from the CJEU in regards to the interpretation of the so-called InfoSoc Directive, particularly its Article 2(c) which addresses the phonogram producers’ reproduction right. In its “Pelham” decision, which has already been reported at IPI, the CJEU clarified that the use of sound samples, albeit very short ones, infringes the phonogram producers’ right of reproduction, except when the samples are used in a modified form and are unrecognisable to the ear.
In light of the “Pelham” decision, the BGH weighed whether the “Metall auf Metall” samples are recognisable to the ear of an average music listener, and whether their use could be allowed under exceptions contained in the German Copyright Act Urheberrechtsgesetz (UrhG) that implement Article 5 of the InfoSoc Directive, particularly the quotation exception (Section 51 UrhG), incidental inclusion (Section 57 UrhG), or parody and pastiche. The BGH ultimately decided that the samples used were recognisable to the average music listener’s ear and that no exceptions were applicable, and therefore Pelham infringed Kraftwerk’s related right of phonogram producers.
The BGH’s decision is hardly unexpected (all the more so considering the CJEU’s last year “Pelham” judgement) and it opens the door for an expansive interpretation of related rights and therefore their protection. In doing so, it warns future music creators that, before resorting to samples, they should be wary not only of others’ copyright but of phonogram producers’ related rights as well.
On January 5, 2022, the Ministry of Economic Development and Technology (MGRT), together with the Intellectual Property Office (URSIL), organized an online consultation. Representatives of URSIL and MGRT first presented to the interested professional public the planned substantive changes to the main solutions of the amended Proposal on Amendments to the Copyright and Related Rights Act (ZASP-I) and the amended Proposal on Amendments to the Collective Management of Copyright and Related Rights Act (ZKUASP-A). Many participants argued that the competent drafter did not provide the interested parties with the amended draft proposals before the discussion, but instead provided all the registered participants only with a meager slide presentation, which was misleading in some places.
OERcamp.global 2021: Presenting the study Remote education during the pandemic – Teacher’s perspective
On December 10th, 2021, at 8.00, at the OERcamp.global 2021, which is a 48-hour conference with practitioners, activists, scientists, nOERds and novices from around the globe, the pre-recorded session of Remote education during the pandemic, Teacher’s perspective will be played. After the played recording, dr. Maja Bogataj Jančič, LL.M., LL.M., Anahita Rezaei (Centrum Cyfrowe) and Teresa Nobre (Communia) will be available to answer the questions. Welcome!
On December 9th, 2021, Career Centers at University of Ljubljana are organizing an online event “Copyright law and Copyrights”, where dr. Maja Bogataj Jančič, LL.M., LL.M will lecture. The lecture will relate to the topic of copyright law and copyrights, and will first guide listeners through the history of copyright, through the philosophical justification of copyright to the current regulation of copyright in Slovenia. Welcome to join us!
On 23rd of November, 2021, the European Commission has published two reports in the field of copyright, as required by Directives 2014/26/EU (CRM Directive) and 2019/790 (DSM Directive). They are supported by two studies: Study on emerging issues on collective licensing management in the digital environment, and Study on selected issues relating to the application of the CRM Directive.