Sampling: will clearance from the record labels systematically be required?
In December 12, 2018, Advocate General Maciej Szpunar delivered his opinion before the Court of Justice of European Union (CJEU) on the questions referred by the German constitutional Court, for preliminary hearing. The CJEU has been asked whether incorporation in a musical work, as a continuous loop, of 2 seconds of a rhythmic sequence from another musical work, would infringe the neighbouring rights of the producer of the first phonogram.
The Advocate General states in his Opinion that the producer of the phonogram would have an absolute right to authorize or prohibit the inclusion in a musical work of an excerpt from his phonogram as part of sampling.
Broader protection than copyright:
In order to be able to claim copyright on the first work, this implies demonstrating the originality of the excerpt taken as a sample.
Since the right of the producer of the phonogram exists irrespective of the protection of the work possibly featured in the phonogram, the Advocate General considers that it is immaterial whether the reproduction of the extract from the first work in the form of a sample is original or not.
The Advocate General therefore considers that the right of the producer of the phonogram may be broader than copyright, even though primary purpose of neighbouring rights were to confer equivalent rights to copyright.
The exclusion of the quotation exception
In France, the quotation exception provided by Article L 122-5 of the Code of Intellectual Property, required inter alia a critical, controversial, educational, scientific or information purpose.
It is this purpose that makes it difficult to apply the quotation exception to the use of sampling.
This purpose is not laid down in Article 5.2 of the Directive on the Harmonization of Certain Aspects of Copyright and Neighbouring Rights which quotes the criticism or review purposes, as an example only.
Nevertheless, for the Advocate General, sampling cannot be a quotation from the first work because, according to him, if the criticism or review purpose is not required by the Directive, the exception can only apply where the quotation serves to “enter into a kind of dialogue with the work quoted " or when " interaction between the quoting work and the work quoted is necessary”.
Protection that takes precedence over freedom of expression/art
The Advocate General considers that the balancing of copyright and freedom of expression as enshrined in Article 11 of the EU Charter of Fundamental Rights should not lead to a limitation of copyright, in the context of a use such as sampling.
According to the Advocate General, primacy of the freedom of expression/arts over copyright should be considered in the event of "censorship" where free circulation of ideas/content is at risk. It is not intended to apply when the works are not used for the purpose of interacting with each other.
This opinion comes against the French jurisprudence of the Court of Cassation on composite/derivative works which had itself followed the precedence of that of the CJEU.
For the record, the French Court of Cassation has considered that the incorporation by a painter of a photograph into his work did not necessarily require authorization, without an analysis of the interests weighed against it.
The Advocate General closes the door to the new uses of derivative works in the digital age, putting as a condition "an interaction between the two works" both for the application of the quote exception and for the balancing of copyright with those of freedom of expression
If the CJEU was to follow his advice, sampling but also mash up and other transformative works would require systematic authorizations of rights holders. Such a ruling would counteract requests for the extension of existing exceptions to transformative works
 Reda Report January 15, 2015, Lescure Report May 13, 2013