Thou shalt not sample… without permission!

On 12 December 2018 Advocate General (AG) Szpunar delivered his Opinion in Case C-476/17, Pelham. The case concerns the practice of sampling, i.e. the reproduction of minimal parts of a phonogram for the purposes of using it in another phonogram.

As harmonized by EU law, the phonogram producer holds a related right of reproduction (Article 2(c) InfoSoc Directive) and a distribution right in relation to their phonograms (Article 9(1)(b) Rental and Lending Directive). Sampling artists, for their part, use these partial reproductions of various lengths in different ways to create new creative works. It is unclear whether sampling can be permitted under existing exceptions in the acquis, like those for quotation, caricature, parody pastiche, or for de minimis uses in national law (Article 5(3)(d), (k) and (o) InfoSoc Directive; and Article 10(1) Rental and Lending Directive).

This case addresses the fundamental tension between exclusive rights of producers, which are essentially incentive-based, and the artistic freedom of sampling artists. After summarizing the facts and questions, we go through the different answers provided by the AG, followed by a few concluding remarks.