Guest post by Mark Edward Blankenship Jr.

The CJEU is currently taking on the Metall auf Metall case from Germany, which involves the legality of unlicensed digital sampling and poses an EU question. While Germany’s freie Benutzung (free use), codified in Article 24 of the German Copyright Act, may allow a degree of authorial self-copying as a defense to copyright infringement (similar to the United States’ fair use doctrine), the EU’s InfoSoc Directive does not appear to provide such right, especially with regards to the practice of digital sampling.

In December 2018, Advocate General Szpunar gave his opinion that the reuse of a sound sequence in a new song (referred to as sampling) without the author’s permission, no matter how small, is considered infringement. According to Szpunar, “A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colors, etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself.” Szpunar also illustrated that requiring a license for the use of a sound recording is analogous to requiring a painter to purchase paint and paintbrushes. Thus, under his view, the right of phonogram producers prevails over the right to artistic freedom.

If you thought that this reasoning sounds pretty similar to the “[g]et a license or do not sample” holding found in the Sixth Circuit case Bridgeport Music Inc. v. Dimension Films, you would be correct. This would not be surprising though. In fact, the Bundesgerichtshof (BGH), Germany’s High Federal Court cited Bridgeport in their opinion back in 2008, yet they discussed very little about it. Yet Bridgeport was never even mentioned in the Bundesverfassungsgericht (BverfG) opinion from 2016. However, the European Copyright Society took Bridgeport into consideration when writing their opinion, as well as VMG Salsoul, LLC v. Ciccone which —as noted from my earlier post—was decided two days after the BverfG holding. Furthermore, their opinion also stemmed from law review articles in both the U.S. and in Europe.

Despite certiorari being denied in this current circuit split on digital sampling, it remains uncertain as to whether the CJEU’s decision would persuade the U.S. in the future. Additionally, it is inevitable as to how their holding may affect digital sampling disputes in other nations like China, Japan, and Australia who have also incorporated neighboring rights into their copyright laws.

Mark Edward Blankenship Jr. is a 3L at The University of Kentucky College of Law, where he served as Operations Manager for Volume 107 of the Kentucky Law Journal. This past summer, he interned with the Arts & Business Council of Greater Nashville’s Volunteer Lawyers and Professionals for the Arts. Prior to attending law school, he graduated magna cum laude at Georgia Southern University with a B.A. in Music.


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