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Kraftwerk sampling in the Court of Justice of the European Union

Chris JHolland30 July 2019

Members of the veteran electronic music group, Kraftwerk (Ralf Hütter and Florian Schneider-Esleben) have an answer from the CJEU to their claim that copying extracts from their recordings to be used in other musical recordings in the form of “sampling” should only be carried out with their permission. The case which concerns the sampling of a brief extract from their song “Metall auf Metall” which was then played as a continuous loop in a 1999 song produced by Moses Pelham and Martin Haas and performed by Sabrina Setlur called “Nur mir”. The CJEU case number is C-476/17.

The court ruled  that in terms of EU copyright law, particularly the Information Society Directive, sampling from someone else’s recording generally requires permission, because it is a reproduction “in whole or in part” of the original work.

On the other hand, if the extract sampled has been modified to the extent that it is not recognisable as the original work (“unrecognisable to the ear”), then that would be justifiable in terms of  Article 13 of the Charter of Fundamental Rights of the European Union, which deals with freedom of artistic expression. Can we conclude that the sampling of Metall auf Metall in the production of Nur Mir would be covered by the latter proviso? After all, the sample consists of a 2 second rhythm sequence, which is arguably not recognisable as the original work (even though it might sound strangely familiar to a really dedicated admirer of Kraftwerk’s music).

This decision could have far reaching implications for the music industry, given that sampling is a widely used technique, particularly in Hip-Hop recordings and that producers are not always in the habit of assiduously seeking permission from the copyright owners of the original recording. The judgment of the CJEU can be found here.   The case itself is also something of a “veteran” as Kraftwerk have been pursuing it for some 20 years.

 

What a performance!

Chris JHolland5 January 2017

Public performances of other people’s music must be licensed in order to avoid copyright infringement and also infringement of performance rights (when playing recorded music). Currently there are two separate licensing bodies in the UK who are able to assist:  PRS for Music represents the interests of composers, song writers music publishers, whereas PPL deals specifically with recorded music and represents the interests of producers and performers.

It follows that if you are organising a public performance of musical works then you are likely to require both a PRS and a PPL licence (particularly if recorded music is involved).  The good news is that it should become simpler to obtain licences for public performance of music. PRS and PPL are working together on a joint venture the aim of which is to offer a single licence. Apparently this is will be ready at some point during 2017.

 

 

Stairway to Heaven Copyright Case

Chris JHolland23 June 2016

High profile copyright cases arising from the music industry are quite common. There are often impressive amounts of money involved because of the commercial value of  rights in recorded music. Those rights can be complex, potentially involving rights in the recording itself, performers’ rights and separate copyrights in the music and lyrics.

In addition, there seems to be something peculiar to the nature of music which easily gives rise to claims of plagiarism or copyright infringement.

The latest case concerns the Led Zeppelin hit “Stairway to Heaven”. Follow the link to read the Guardian’s report on the court proceedings in Los Angeles. The claim is that a significant part of the music of the Led Zeppelin number was taken from “Taurus”, a song written by the late Randy Wolfe for his group, Spirit.

There are some similarites with the well known case concerning George Harrison’s “My Sweet Lord” which was judged to have reproduced the music from the Chiffons’ hit “He’s so fine”. A major difference in this case is that the members of Led Zeppelin deny that they were familiar with the music of “Taurus”.

Copyright infringement need not be intentional and can be completely inadvertent, as was held to be the case with “My Sweet Lord” and still be infringing. On the other hand you can only plagiarise a piece of music if you have actually heard the music, otherwise any similarity would presumably be coincidental.

 

 

 

 

 

New “Format Shifting” Exception under attack

Chris JHolland23 June 2015

Music industry bodies have challenged the legality of the new Private Copying Exception (CDPA, 28B). The British Academy of Songwriters, Composers and Authors (BASCA) along with the Musicians’ Union and UK Music have been seeking judicial review of the Government’s implementation of the exception in 2014. There is no direct relevance to Libraries or HE, but it may be of interest.

The basis of the challenge is that the Government failed to introduce a compensation scheme to make good any loss to the copyright owners following from the new exception, which enables consumers to copy for their own use any recorded music or other content which they have purchased, such as ripping a CD for your smart phone. Yes, of course you were doing that anyway – The new exception legitimises common practice!

In most EU countries there are levies on recording equipment – they work like a sales tax designed to compensate copyright owners for losses resulting from private copying. Levies are found to be unwieldy and bureaucratic in those countries, but they do provide substantial revenue for copyright owners via collecting societies.

There is an argument that the EU Copyright Directive requires compensation and the levies tick that box. 

The Government’s stance is that they have kept the new exception narrow so that harm to copyright owners will be non-existent or minimal – hence no compensation required.

The judgment in the High Court by Mr Justice Green has recently been issued and is available online here . This is a partial victory for the music industry bodies. The court agreed with the claimants on one significant point: The evidence examined by the Government to decide that damage to Copyright owners would be minimal was in fact inadequate. This is enough to make the Government’s action unlawful, but leaves it various options, such as:

  • Gather more persuasive evidence
  • Introduce levies
  • Refer questions to the CJEU
  • Repeal the exception (CDPA Section 28B)
  • Appeal to a higher court

Watch this space!

A Couple of things to watch out for in 2015

Chris JHolland9 January 2015

The EU initiative to review and update Copyright is still ongoing (although you could be forgiven for forgetting about it) and no doubt there will be proposals in 2015, following the previous consultation exercise. Apparently copyright features high up the agenda of Commissioner Oettinger . So there could be further changes to copyright legislation, following on the heels of the UK Government’s updating of the exceptions to copyright in 2014. The EU is committed to increased harmonisation of copyright in its member countries.

UK Music and various other bodies representing the music industry have launched a legal challenge to the Government’s implementation of an exception for Private Copying. The new exception permits you to format shift, for example by copying a music CD you have bought to use on your mobile device (essentially legalising what people were doing anyway). This is the new Section 28B of the Copyright, Designs and Patents Act 1988 (CDPA), “Personal copies for private use”.

The basis for the challenge is that although the EU Copyright Directive allows  member states to implement just such an exception, it also includes a requirement for “fair compensation” for the relevant copyright owners and in the UK there is no mechanism to deliver that. Watch this space!