Sample, sample in my song, can they tell where you are from? The Pelham judgment – Part II

The first part of this blogpost discussed the interpretation given to the right of phonogram producers under Article 2(c) of Directive 2001/29/EC (InfoSoc Directive) and Article 9(1)(b) of Directive 2006/115 (Rental and Lending Rights Directive) by the Court of Justice of the European Union (CJEU or Court) in Pelham. Contrary to the Opinion of Advocate General (AG) Szpunar, the CJEU limited the scope of protection of the phonogram right to samples which can be recognized in a new song. This second part of our blogpost discusses the Court’s approach to samples which can be recognized and whether use of such samples comes within the scope of the exceptions and limitations (E&Ls) to the exclusive right. In the national proceedings leading up to this preliminary reference, Moses Pelham had relied on the German ‘free use’ defense. The legality of this defense in the light of EU law and the applicability of other E&Ls was the subject of questions 3 to 5 referred to the CJEU.