Unrecognizing the recognizable: Addressing the rapper’s dilemma in light of the German case law

*This article is going to be interesting because of three reasons. One, it talks about Sampling in the music industry; two, how European Union Directives harmonize the national legislation on copyright and related rights; and thirdly, what are the legal consequences of sampling in Germany. To make it specific, this article only gives a perspective on EU and German law concerning ‘sampling in the music industry’. 

Music! It fills your soul with diverse emotions: romantic, gloomy, cheerful and what not. It sets you in some mood. Several genres have emerged at different era envisaging different culture and style. One such style that caught public attention was hip hop, which not only emerged as a new genre of music but as a cultural movement depicting the endless gamut of human conditions, and attained popularity particularly around the 1980s and 90s. Today in 2020, it has branched out to be a music style with rhythmic speech as one of the most influential art forms. Along with Hip Hop, a new acoustics technique became extremely popular called ‘Sampling’ which has been a bone of contention as several controversies and litigation have erupted since its inception.

Wait! Do you know what Sampling is? Let me explain. It is a technique of isolating a portion from an existing recorded sound, be it a drum beating pattern, some rhythm or some voice and using it in a loop or just once in other recording. With the digital technological revolution and advances in sound engineering, it has now become easier to extract a sample from an artist’s work and integrate it into another artist’s work. This technique took off in the 80s inextricably linked to blues and rock music, which were created by transposing existing music. DJs and EDM artists too, have also often used turntables to create a loop of existing music or create their music by mixing and weaving together different samples.

You will be surprised to know that our golden era songs, sung by Lata Mangeshkar ji, Mohd Rafi sahab and other legendary artists, were adored by the west coast region rappers. Several big names from the “Hip Hop” industry sampled our Bollywood songs. Most of us believe that it is we who copy from Hollywood, but hey, they copied us too! [Click on the link and check out yourself The Bounce by Jay-Z feat. Kanye West[choli ke peeche kya hai]/Erick Sermon_React [Sample of Kisi ko Khudkhuhsi ka Shauk ho]  

This technique is often used by “Rappers” and is heavily criticized because artists allege that sampling is nothing but reproduction or copy of their original work, if done without the authority of the owner of original record. The copyright over the sound recording vests with the producer and if someone wishes to use any part [even for a second] of the song then legally they need to take a license from the owner, otherwise it would become copyright infringement, unless it comes under fair use. However, it is not as easy as it sounds. Proving copyright infringement in a given case is peculiar in itself because every case is pristine and striking a balance between rights of copyright holders and fair use rights of users is challenging.  

Let me now apprise you with a captivating two decades of copyright dispute which is not yet fully understood let alone a final verdict. Not only plaintiffs but also the defendants must be wondering what the point of this twenty yearlong saga is, that started in 1977 and not yet fully decided in 2020.  The IP sector requires speedy disposal of cases so that the commercial aspect of the rights is not lost but, alas, that is not how the court procedure works.

Like corona pandemic which seems to be uncontrollable although recent, the dispute related to sampling in music has been festering the German courts for the last two decades. Yes, you got it right I am referring to none other than the Pelham case [Pelham GmbH v. Ralf Hutter Case C-476/17]. After the European Union Court of Justice [CJEU] judgement in 2019, an expectation appeared that a concrete judgement from the German Federal Court of Justice [BGH] will follow, but yet again, a day ago [April 30, 2020] the BGH did not fully decide the case and referred back to Higher Regional Court for the never ending next round.

Well, this case is important not only because that the CJEU gave a ruling on whether sampling amounts to copyright infringement or not but it gives a thorough understanding of how EU laws and German National laws related to Copyright and Related Rights are to be read together and what is the role of fundamental rights in interpreting copyright law. 

Facts were pretty simple like any other sampling dispute. In 1977, Hutter and an another member of Kraftwerk published a phonogram incorporating a song ‘Metall auf Metall’ [click here for the song] which was allegedly electronically copied [sampled] approximately for 2 seconds and used by Pelham in a continuous loop in their song ‘Nur mir’.  Hutter and members claimed that Pelham has infringed their copyright by sampling their song and requested for an injunction order, damages and surrender for the phonograms of Pelham.

The case was first brought before the Regional Court of Hamburg, Germany. Hutters got the injunction order [decided in 2004], which was affirmed in the appeal filed by Pelham in the Higher Regional Court Hamburg, Germany [decided in 2006] and then in 2008, it was decided by BGH. After a couple of more rounds, in the year 2016, the German Federal Constitutional Court [BVerfG] decided the matter in favor of Pelham by stating that the lower courts did not consider the fact that the impact of the sample used by Pelham on the market of Kraftwerk would be negligible. The decision of the BVerfG was based on protecting the artistic freedom of the artists and agreed that imposing unnecessary license royalty requirement would stifle creativity. The court positioned itself as the guardian of freedom of artists by permitting remix and sampling without seeking any license from the copyright owner. The court suggested interpretation of the German ‘free use’ as striking a balance between the rights of producers of phonograms and rights of users. The decision was welcomed by the artists and other major section of lawyers.

However, later the case was referred to CJEU for preliminary rulings regarding interpretation of law [EU Directive and German Law] related to the following issues.[the decision of CJEU came in July 2019] First, whether sampling amounts to infringement of the exclusive rights of the producers of phonograms to reproduce & distribute its phonograms as per EU Directive? What is the scope of ‘the right of reproduction’ and its limitations? Second, can a sampled phonogram be considered as a copy of the original phonogram? Third, can a member state lay down exceptions and limitations in their national legislation which restricts the rights of phonogram owner provided under the EU Directive? Fourth, and the most important question as to what extent the fundamental rights argument can be used to ascertain the scope and extent of the rights of the producers of the phonograms and the scope of exceptions and limitations to those rights?

To highlight the specific points, the court stated that the user in the exercise of its artistic freedom if takes out a sample from an existing song and uses it in a way which is unrecognizable to the ear, then it cannot come within the ambit of the meaning of ‘reproduction’. The law does not suggest that intellectual property rights are inviolable or absolute. Creating a new work by using sample comes under the form of artistic expression which is covered by freedom of arts as laid down in the EU Charter. The court, however, did mention very clearly that the copyright law intends to protect the rights of the producers of phonograms so that they can recoup their investment. So a sample, even if it is of few seconds, can amount to reproduction unless it is unrecognizable in the new or derivative work.

With regard to copy the court stated that the new work will not be considered as a copy of the original work because as per the Geneva Convention, which although do not form part of EU Law, nonetheless can be applied to the given case as suggested by the Advocate General, ‘copy’ means that ‘all or substantial part’ of the original work is transposed into a new work.

Another captivating issue was the freedom that member nation possess to include exceptions in their national legislation apart from what is provided in the EU Directive. The court stated categorically stated that the EU Directive makes the provision of exceptions and limitations exhaustively and there is no scope for more exceptions. Inconsistency between different legislation is often a bone of contention in several disputes in the EU. However, there is one common principle that runs through all member states of EU which is the principle of supremacy. The principle of supremacy describes the relationship between the different legislation in terms of precedence. The supremacy rules ensure that EU laws are applied uniformly across all the member nations and in an instance of conflict between the EU law and the National law, the EU law shall prevail. Therefore, if a national law conflicts with the EU Law, the member states authorities must apply EU Law without amending or repealing the national law, it’s just that for the time being the national law remains suspended.  And to allow, the member states to add more exceptions, as opposed to the express intention of EU Legislature would endanger the effectiveness of the harmonization of the copyright and related rights affected by the EU Directive as well as the principles or objectives laid down by the court in previous judgements. Such differences across the nations will affect the functioning of the internal markets of the copyright and the consistency cannot be achieved if member states can add more exceptions as per their whims and fancies.

The CJEU rulings formed the basis of the BGH judgement which came a day ago [April 30, 2020] [Click here to head the decision]. The BGH stated that the acts of defendant amounts to reproduction and hence violates the rights of Plaintiffs, but only for the period after  December 22, 2002, since the EU Directive 2001/29/EC on reproduction rights is applicable from this date, however, the sampling by Pelham was done in the year 1997. The Court, however, did not make a final assessment because the Higher Regional Court lacked findings as to whether the defendants have taken any acts of reproduction or distribution since December 22, 2002 or whether such actions were to be expected seriously and concretely. Further, the court made it clear that Pelham cannot rely on the fair use exception given under the German Copyright Law, since according to the CJEU ruling the EU Directive does not permit EU member states to include more exceptions than what is provided in the EU Directive. Also, the Defendant cannot invoke other exceptions including quotation, caricature or parody. Hence the appeal was overturned by the BGH and matter was referred back to Regional Court for re-examination.

To sum it up, it is undisputed that the objective of copyright law is to be protective of the rights of the authors or owners, but these rights are not absolute, their rights are subject to certain restrictions and limitations which are enumerated in the Copyright Law itself. To balance the rights of phonogram owner and users in the light of fundamental rights, it is appropriate to conclude that where usage of the sample is unrecognizable to the ear, howsoever long it may be, it will be permitted to protect the freedom of expression of artists. An interpretation that gives absolute rights to phonogram producers would fail to strike a balance between rights of different right holders and users, hence there should be some living space made available to the artists to sample and create new work. However, it should be unrecognizable in the new work, no matter whether the sample forms a substantial part of the original song, but the point is how the sample integrates with the new work in an unrecognizable manner.

Having stated that, what amounts to recognizable or unrecognizable form of sample is still a question of fact, and depends upon how observant a listener is. Subjectivity brings a lot of discretion which needs clear principles and guidelines. May be another judgement will give us more clarity with regard to ‘what is an unrecognizable form of sample in a derivative work?’ Till then, the findings of CJEU comes as a relief to some extent if one is using the sample without being “noticed”. But then what’s the point of sampling? Isn’t it? I think we need more elaboration on the concept of ‘Derivative works’ or works created using sampling. As I said every case is pristine, given the nature of art form, and it becomes ever challenging to apply the same rules in new areas of creativity.

Let us wait for the decision of the next round which lie before Higher Regional Court.

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