On 12 December, Advocate General (AG) Maciej Szpunar of the Court of Justice of the European Union (CJEU) delivered his (non-binding) Opinion in a case on the use of a music sample of ‘approximately two [2] seconds’. More specifically, this revolves around the use of a sample from the 1977 song ‘Metall auf Metall’, from the German electronic music pioneers Kraftwerk, in the 1997 German song ‘Nur Mir’, performed by Sabrina Setlur and produced by Martin Haas and rapper Moses Pelham.

This case has generated a lengthy battle in the German courts, resulting in a 2016 judgment from the German Federal Constitutional Court (the ‘Bundesverfassungsgericht’) rejecting a 2012 ruling in favour of Kraftwerk by the German Federal Court of Justice (the ‘Bundesgerichtshof’).

The German Federal Constitutional Court found that granting protection to even the smallest samples of a musical work was incompatible with the artistic freedom granted by the German Basic Law – see the European Copyright Society’s opinion [PDF] for more background. The German Federal Court of Justice, which needed to reassess the case, decided to ask a number of preliminary questions to the CJEU. It is as a result of these questions that AG Szpunar concluded in his Opinion that unauthorized sampling infringes the neighbouring rights of phonogram producers.

Neighbouring Rights: Protect Investment, Not Creativity

This 2 second music sample, and other samples, are protected by the neighbouring rights which are granted on musical works to ‘phonogram producers’. However, beyond the specifics of the case, this Opinion should be read in the context of all forms of short extracts that could be protected by neighbouring rights. More specifically, looking at the current EU Copyright reform discussions, one must interpret the AG’s Opinion in light of the treatment to be expected for hyperlinks and news snippets, should the neighbouring right that press publishers and news agencies are pushing for through Article 11 (the so-called press publishers’ right) be adopted.

A quick but crucial reminder in this context: neighbouring rights protect economic investments, not creativity. This is an important distinction with copyright, which requires some form of creativity/originality as a minimum threshold for protection.

This economic investment perspective is the reason why AG Szpunar considers this music sample to be protected, because the law clearly protects the investment that has gone into creating it, without taking into account the creative process that has led to it nor the ‘value’ or importance of this sample in the actual work.

Implications for the EU Copyright Reform: Protecting Individual Words (Article 11) Requires Filtering Everything (Article 13)

It is to be noted that the AG’s Opinion is non-binding, but the CJEU has a strong tendency to take into account the views put forward by the AGs in their final judgments. Therefore, it’s worth looking at how this Opinion could impact the future application of Articles 11 and 13 of the EU Copyright reform.

AG Szpunar notes that neighbouring rights apply to individual words, even if these are not protected by copyright. Translated to Article 11 this implies that: linking could be covered as soon as a URL comprises individual words, regardless of their (lack of) originality. And at any rate, a link accompanied by a word has a high likelihood of being covered.

The Opinion also shows that neighbouring rights trump national laws, including in this case the fundamental rights (artistic freedom) principles that the German Constitutional Court identified. Translated to Article 11 this implies that: Member States should rethink the margin of manœuvre they’ll actually have when transposing this new neighbouring right for press publishers’ in their national legislation.  

If Article 11 is about protecting the press publishers’ economic investments, then individual words are caught and no originality criteria can be applied (as it’s not about copyright protection), not even by those Member States who would like to do so.

Combine all that with the upload filter being pushed under Article 13, and BOOM: you have the perfect recipe for disaster! A quick reminder, Article 13 not only has to ensure that no copyrighted material is uploaded on online platforms, but also needs to ensure this does not happen for material protected by neighbouring rights. In other words, because of Article 13 online platforms will have to ensure that no news content, which would be protected by a neighbouring right under Article 11, ever gets on their platform. The only solution for them to do so, is to filter everything in order to protect the individual words from news publications. The end result: sharing news online will be something from the past.

Be careful what you wish for!

It is highly questionable how this can be in favour of the newspaper industry and how this will actually help them to survive in the next decade.

That is why the the Coalition of European Innovative Media Publishers have been calling on the EU legislators to at least ensure that if Article 11 would pass that they could waive this neighbouring right, as they believe that: “waivability is the perfect compromise, let us decide our fate, how we want to survive and how we want to die”.

Google from its end has also warned that Article 11 will force them to pick the winners and losers in the news paper industry, and that the end result would likely be that it would “mostly benefit larger players”.

Glyn Moody has written before about the fact that this debate on Article 11 has been mainly driven by rhetoric, not by arithmetic. The driving force behind this rhetoric,  VG Media, received a blow in the face, as on 13 December, the CJEU’s newest Advocate General, Gerard Hogan, advised in an Opinion that the CJEU should rule that the German version of Article 11, the so-called ‘Leistungsschutzrecht’, cannot be applied by German courts because the German government never notified these measures to the European Commission. This implies that the German government would need to set this straight to ensure that the ‘Leistungsschutzrecht’ would have any legal value in court.

All of these elements should be taken into consideration by the EU legislators in their appraisal of the final wording of Article 11. Our advise to them: be careful what you wish for!

Featured image: “Kraftwerk, Manchester International Festival 2009” by Andy Miah is licensed under CC BY-SA 2.0