[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.

　　 [background]

　　Kraftwerk (German band) Sue Pelham, Claim the latter from the plaintiff 1977 The song was released in 2005 "Metall auf Metall" For a long time 2 Second melody, Repeat in a loop (continuous loop) The form is used in the latter 1997 The song was recorded in 2005 "Nurmir" In the. The plaintiff argued that the act infringed his copyright.

　　The defendant did what the music world calls "sampling (sampling) " , To extract a segment from an existing recording, usually by means of an electronic device (Or sample, "sampling" That's where the salutation comes from) , And add new independent works to the technology.

　　To better understand the nature of the problem, The key is the difference "sampling" The act of technology and the act of simply adding pieces of previous music to a new work: "sampling" It's a sound clip taken directly from a recording, Just like the presiding officer in this case Mr. Maciej Szpunar In its 2018 years 12 month 12 As explained in the conclusion of the daily report: "This is not a typical relationship between works in the sense of copyright law, It's a recording (commodity) And works (Artistic creation) The relationship between" . What we're dealing with is, The problem of adding a performance recording to a new recording. Based on the above analysis, The judge thought: "The act of copying a piece of music and adding it to the score of a new piece and playing it accordingly, not 'sampling' " .

　　In view of this, Germany's Federal Court of Justice asked the European Court of Justice for a preliminary ruling, Identify the producer of the phonograph "sampling" Scope of rights on relevant issues (Copyright adjacency) : Whether the producer of the prior phonograph has the exclusive right to reproduce the phonograph? To determine whether the exclusive rights of producers of phonograms have been infringed, (extracted) Whether sample length was a determining factor? "Used for reference purposes" The exception to the rules and regulations "sampling" The relationship between? "sampling" Whether belong to "The European Parliament and the European Commission concerning the lease of copyright in the field of intellectual property, Instructions for lending rights and other specific rights (The first 2006/115/EC No) " The first 9 (1) (b) prescribed "copy (copying) " ? "Charter of Fundamental Rights of the European Union" What are the implications for the rights of producers of phonograms?

　　 [conclusion]

　　The European Court of Justice intends to harmonize the legal framework of copyright and adjacent rights in the EU, To eliminate and avoid differences in the level of protection afforded by Member States in relation to technological progress and development in the information society, Settle the dispute.

　　Based on the above premise, And fundamental rights considerations, The European Court of Justice held that, To support the creative and artistic creation of writers and performers, It is necessary to establish an appropriate compensation system, Compensation for making sound recordings, Investment costs in the process of recording and other multimedia works.

　　 (1) The relationship between sample length and infringement determination:

　　About cause "sampling" Resulting in infringement problems, The European Court of Justice stated that, Sound clips are taken from previous recordings and incorporated into new compositions, Regardless of the length of time it takes to extract the fragment, As long as the sound clip or sample is still recognizable in a new recording, The consent of the producer of the preceding phonograph shall be obtained.

　　If a new recording is added to a modified sound clip, Making it unrecognizable to the ear, This use does not belong to "Directive of the European Parliament and of the Council on the harmonization of partial provisions on copyright and related rights in the information society (The first 2001/29/EC No) " The first 2 (c) prescribed "copy (reproduction) " , It is therefore not necessary to obtain the consent of the producer of the original phonograph.

　　If the use of the above is deemed as infringement, It goes against the fair balance between the interests of copyright and adjacent rights holders and public interests. According to "Charter of fundamental rights" The first 17. 2 Provision of article, None of these rights is an absolute right without any limitation.

　　The European Court of Justice held that "sampling" Deserve to receive "Charter of fundamental rights" The first 13 strip-protected "A form of artistic expression within the scope of artistic creation" , Provided, however, that producers of phonograms are not prevented from obtaining satisfactory compensation for their investments.

　　 (2) "sampling" Is equal to "copy (copying) " or "copy (duplication) " ? 　　The European Court of Justice stated that, "European Union regulation 2006/115/EC Number instruction" Not stipulated "copy" Definition of, Therefore, the rule should be interpreted by hermeneutic method.

　　1971 years 10 month 29 It was signed in Geneva on Sunday "Convention for the Protection of Producers of Phonograms against the Unauthorized Reproduction of Their Phonograms" The first 1 (c) article, will "copy" Define as "An article containing sound obtained directly or indirectly from a recording, The article contains all or a major part of the sound fixed on the phonograph" . This is despite the fact that the international instrument is not part of the EU legal system, But part (Not all) The member states are signatories to the Convention. Therefore, The application of the Convention cannot be completely excluded.

　　Take into account "European Union regulation 2006/115/EC Number instruction" Legislative purpose (To ensure that producers of phonograms recover their investment) , The European Court of Justice agreed with the examiner's conclusion, A forged copy of a sound recording, piracy, There would undoubtedly be an impact on the income of phonographers. Therefore, A piece of work, Only sound clips from other recordings are included, Which contains all or a substantial part of the original recording, Talent composition "European Union regulation 2006/115/EC Number instruction" The first 9 (1) (b) prescribed "copy" , Because the work "Allowing listeners to listen to the recording without having to buy a legitimate copy" (From the original report of the presiding officer) . contrary, Have used "sampling" A technical recording in itself does not constitute a first 9 (1) (b) prescribed "copy" .

　　 (3) Member states' discretion in setting exceptions and restrictions: 　　As for the third question, And does not exist in EU law "German copyright and adjacency law (1965 years 9 month 9 day) " The first 24 (1) Provision of article—— "Free use" Including publication and publication without the consent of the author of the work——Corresponding provisions. The European Court of Justice held that, This is a general exception set by German lawmakers, But it's not included in "European Union regulation 2001/29/EC Number instruction" The first 5 Article expressly lists among the exceptions and limitations to the rights of producers of phonograms.

　　If member states are allowed to add restrictions and exceptions to the provisions of the directive at the national legal level, Contrary to the directive No 5 The legislative spirit of the article——Ensure the proper operation of copyright and adjacent rights in the internal market.

　　 (4) about "For reference purposes" Use of:

　　about "European Union regulation 2001/29/EC Number instruction" The first 5 prescribed "reference" Concept of, European court of justice, As stated in the clause, Just consider: (i) The way citations are used "Fair practice" ; and, (ii) "Limited to specific purpose requirements" . Therefore, Take a sound clip (sample) as "citation" use, If it is not recognizable in a new recording that references the segment, Such use should be permitted, But only if, The purpose of using this segment is to work with the works being sampled "dialogue" Or make intellectual comparisons, For example, to assert or defend a point of view.

　　 (5) The primacy of EU law:

　　On the discretion of Member States in the application of EU law, The European Court of Justice stated that, "European Union regulation 2001/29/EC Number instruction" The first 2 (c) The article provides for fully coordinated measures, It shows the primacy of EU law, That is, superior to any Member State law that might threaten the harmonisation of EU law.

　　 [comment]

　　Although the European Court of Justice drew a clear line in its ruling, Still visible, With the continuous development of the information society (As the European Court of Justice has repeatedly said) And its inherent technological challenges, For similar disputes in this case, In addition to clear boundaries, There was a position in favour of a future review of existing restrictions and exceptions. Therefore, The case could still come to a different conclusion. In any case, I agree with the trial officer pointed out in this case, Any movement in that direction, Should be driven by legislators, not judges, So that task should not fall to member state judges.

　　For the moment, To incorporate excerpts from other recordings into a work, As long as it's still recognizable, The author's consent should be obtained, Regardless of the length of time the fragment is taken.

　　compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights