Upcoming Sampling Problems On The CJEU's Agenda

At the end of 2018, an opinion of the Advocate General was issued in Case C-476/17 on the admissibility of using so-called 'samples' from the point of view of EU copyright law. We are currently waiting for the judgment of the Court of Justice of the European Union (CJEU) in this case, which will play an important role in guiding both the interpretation of current regulations and the future of contemporary music.

It goes without saying that sampling has become one of the most common elements of the contemporary music scene in recent years. What is equally true, however, is that this musical technique has also given rise to many controversies under copyright law, namely Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. It was in this context that the opinion of the Advocate General of the CJEU, Maciej Szpunar, was drawn up on 12 December 2018 (Case C-476/17).

Although the opinion is not binding on the judges of the Court, it presents a number of important arguments that have long been put forward in the discussion on the copyright implications of sampling. It is worth looking at them briefly and trying to assess whether they will influence the nature of the ruling, which will be eagerly awaited by fans of genres such as hip-hop or rap. But let's start at the beginning.

What is sampling and why is it a challenge to copyright?

There is no single, official definition of sampling. In his opinion, the Advocate General described it as "the process of taking, by means of electronic equipment, a portion or sample of a phonogram for the purpose of using it as an element in a new composition in another phonogram". In lay terms, sampling involves using fragments of earlier musical works by including them in a new musical work. Sometimes samples are limited to just a few notes, but there are cases where they constitute an entire musical phrase, e.g. a fragment of a chorus or other characteristic musical theme.

Is sampling a new phenomenon in the world of music? If we simplify this phenomenon slightly and reduce it to the practice of borrowing certain musical motifs, for example from folk music, it is easy to find such 'samples' used in the works of romantic composers (e.g. Fryderyk Chopin or Stanisław Moniuszko). Other composers (e.g. Henryk Mikołaj Górecki in "Muzyka staropolska" op. 24) used fragments of earlier works in...