Sound Sampling, a Permitted Use Under EU Copyright Law? Opinion of the European Copyright Society in Relation to the Pending Reference before the CJEU in Case C-476/17, Pelham GmbH v. Hütter

This Opinion from the European Copyright Society (ECS) discusses the legal boundaries of the use of sound sampling under copyright law in the context of the currently pending CJEU case 476/17 (Pelham GmbH v. Hutter). The ECS recommends a careful interpretation of the scope of the phonogram producer’s right. In the absence of any threshold or condition for protection, this right will extend to cover minimal parts of phonograms and will exceed the protection offered to works in copyright law. Sampling should only be covered by the phonogram producer’s rights where it significantly prejudices the economic interests of the right holder. The ECS also argues that the quotation exception in Art. 5(3)(d) InfoSoc Directive should apply to sound sampling, even where it is not evident to the listener that another person’s work or subject matter is being used in the form of a sound sample. However, such use requires that the source, including the author’s name, should be given in the description of the work. In this regard, the ECS reiterates the duty of the CJEU to interpret the provisions of EU Directives in a manner that ensures compatibility with the Charter of Fundamental Rights of the European Union, especially the freedom of the arts (Art. 13) and the freedom of expression and information (Art. 11). In the introduction below, Advocate General Szpunar’s Opinion (which takes a very different view on the issues referred by the national court) is also briefly considered.