Infopaq, Pelham and implications for Irish copyright law
On 29 July 2019, the CJEU (Grand Chamber) handed down its judgment in Pelham C-476/17. This case arose in the context of a long-running saga involving allegations of infringement made by members of Kraftwerk and concerned the sampling of a two second clip of Kraftwerk’s music. The CJEU was asked inter alia whether such a two second recording could constitute an infringing reproduction under Article 2(c) of the InfoSoc Directive. This paper examines the court’s approach to that question, considers its relevance to infringement of other types of works and assesses its potential implications for the Copyright and Related Rights Act 2000 (as amended) (the “2000 Act”) in Ireland.
Copyright Infringement – Extent of Protection under Article 2 InfoSoc Directive
In Pelham, the CJEU analysed the reproduction right of phonogram (i.e. sound recording) producers and set out a test infringement of this right. The request for a preliminary ruling to the CJEU arose in the context of German proceedings dating back to 1999 in which members of Kraftwerk alleged that the sampling and looping of a two second sequence from their track “Metall auf Metall” amounted to copyright infringement.
In its judgment, the CJEU noted that Article 2(c) defines a phonogram producer’s exclusive right of reproduction in the European Union in unequivocal terms and the article constitutes a measure of full harmonisation of the corresponding substantive law. Significantly, the CJEU reiterated that the reference to “reproducing…in whole or in part” in Article 2 is to be given its “usual meaning in everyday language” – i.e. sound recording producers have the exclusive right to authorise or prohibit reproduction of their sound recordings regardless of how short the sampled piece.
The court justified this strong level of protection for sound recordings by referencing, first, the general aim of the InfoSoc Directive of implementing a high standard of protection (recitals 4, 9 and 10) and, secondly, by specifically referencing the objective of the exclusive right of the producer to protect their “investment”. Reproduction of any part of the sound recording, no matter how short, would impact that investment and the producer’s ability to realise satisfactory returns on it.
When interpreting Article 2(c), however, the Court emphasised the need to strike a fair balance between the interests of rights holders, on the one hand, and the interests and fundamental rights of users of protected subject matter and the public interest, on the other. Taking into account fundamental rights, the Court qualified the producer’s right by holding that a sampled piece that is modified so that it is “unrecognisable to the ear” in another sound recording would not be regarded as a “reproduction” for the purposes of Article 2(c). In such cases, the party using the sample creates a new work, exercising their freedom of artistic expression, such that the producer’s investment is not impacted upon. The court also added that, where a sample is unrecognisable to the ear, it would not constitute a “reproduction” within the usual, everyday meaning of that word.
Once it has been established that a relevant reproduction took place, there would be infringement, as the court held there is no de minimis threshold; Article 2 prohibits reproduction of any part.
Impact of Pelham
First, the judgment creates a high level of protection for producers of sound recordings and may have a significant impact on artists in musical genres where sampling and looping is common.
On a broader level, the literal interpretation of Article 2 of the InfoSoc Directive raises the question whether the reproduction of any part of other types of protected work could similarly amount to infringement. In Ireland, section 37 of the 2000 Act limits infringement to copying a work or any substantial part of the work. The question therefore arises as to whether section 37 is consistent with the InfoSoc Directive, both in the context of the subject matter at issue in Pelham and more generally.
As a starting point, it is helpful to distinguish between an author’s copyright rights in respect of what are referred to as “works” in the InfoSoc Directive (in particular, original literary, dramatic, musical or artistic works, sometimes referred to as “Berne works”), on the one hand, and neighbouring rights in respect of products (or “non-Berne works”) such as sound recordings, films, broadcasts and cable programmes, on the other. In his opinion in Pelham, the Advocate General emphasised that a sound recording is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself. In the case of an original work, however, it is possible to distinguish the elements which may not be protected, such as words, sounds, colours etc., from the subject-matter which may be protected as an original arrangement of those elements. As a result, different considerations apply when it comes to assessing infringement of the copyright in an original work or a neighbouring right in a non-Berne work, such as a sound recording, as was the case in Pelham.
(a) Copyright – Authors’ original works
The CJEU has previously clarified the interpretation of Article 2(a) InfoSoc in relation to works of authors in the landmark case Infopaq International C-5/08 (“Infopaq”). This case, in very broad, simplified terms, concerned the reproduction of 11 words from various newspaper articles.
The court first noted that Article 2(a) of the InfoSoc Directive makes no reference to the laws of the Member States and therefore an autonomous and uniform interpretation must be adopted throughout the Community.
The court then defined a work, as a matter of EU law, as an intellectual creation of the author of the work. The court found, accordingly, that it is only when there is a reproduction of elements constituting the expression of the intellectual creation of their author that there is an infringing reproduction within the meaning of Article 2(a) of the Directive.
The CJEU did not say that a substantial part would have to be copied for there to be an infringing reproduction. Reproduction of any part – provided it reflects the expression of the original author’s intellectual creation – amounts to a reproduction under Article 2(a). On that basis, it held that the reproduction of a mere 11 words may be an infringement if the extract reproduced reflects the expression of the original author’s intellectual creation.
On the face of it, this suggests that section 37 of the 2000 Act may be inconsistent with Article 2 of the InfoSoc Directive. It could be argued, however, that the section 37 substantiality requirement reflects the test for a reproduction as per the CJEU in Infopaq, i.e. if there has been a copying of a substantial part of a work under the 2000 Act then, based on similar considerations, it might be expected that there has also been a reproduction under Article 2.
This is suggested in Lord Millett’s speech in Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC)  1 W.L.R. 2416 (which concerned the English equivalent provision, which is phrased similarly to the Irish Act):
“[T]he issues of copying and substantiality are treated as separate questions. Where, however, it is alleged that some but not all the features of the copyright work have been taken, the answer to the first question will almost inevitably answer both, for if the similarities are sufficiently numerous or extensive to justify an inference of copying they are likely to be sufficiently substantial to satisfy this requirement also.”
Similarly, the Court of Appeal of England and Wales in the Meltwater Holding BV case, applied Infopaq and found no conflict with the “substantiality” requirement under English law. Essentially, when the part that is copied takes any of the author’s originality, that can be seen as a substantial part.
(b) Copyright – Related Rights
Related rights are rights not protecting authors, as such, but the related works of performers, producers of recordings and broadcasters. Therefore, as seen in Pelham, these works are not subject to any requirement to be original or to constitute the expression of the author’s intellectual creation. The protectable works here are the fixations of such sounds, images or performances.
The test adopted by the CJEU, in Pelham, in respect of sound recordings, is summarised above.
In looking at what test would apply to these types of non-Berne works under the 2000 Act, the decision in England and Wales Cricket Board Limited, Sky UK Limited v Tixdaq Limited, Fanatix Limited  EWHC 575 (Ch) is instructive. As noted above, the Irish and UK legislation are similarly phrased, as both contain the qualification that a “substantial” part of a work would need to be copied.
In summary, the defendants in this case had essentially copied and made available clips of broadcasts of cricket matches lasting up to 8 seconds (and/or facilitated the copying and making available of such materials).
The court first stated that the rights in question are signal rights and not content rights, so no analysis of the originality of the copied part was necessary. The court then asked whether the copying amounted to a reproduction of a substantial part of the works in question. Relevant to that was the fact that the rights in question were entrepreneurial rights which protect the investment of the broadcaster and film producer respectively.
The court then set out the requirements under the InfoSoc Directive:
“Article 2 gives authors and others the right to authorise or prohibit reproduction of works and other subject matter “in whole or in part”. It is clear from Infopaq I and subsequent authorities that, in the case of literary and artistic works within Article 2 of Berne, this does not mean that reproduction of any part is a restricted act. Rather, the CJEU has held that Article 2(a) of the Information Society Directive is to be interpreted by reference to the rationale for granting protection, which in the case of literary and artistic works is the intellectual creativity they express.
In my judgment a similar approach must be applied to Article 2(d) and (e) of the Information Society Directive. Thus parts of broadcasts and first fixations of films enjoy protection under Article 2(d) and (e) provided that they contain elements which reflect the rationale for protecting broadcasts and first fixations, that is to say, the investment made by the broadcaster or producer.”
Accordingly, applying the substantiality requirement with a view to protecting the broadcaster or producer’s investment, the Court found that some parts of the sporting broadcast would be more valuable (highlights) while others may not be so valuable as to form a substantial part of the work. The court found that even 8 second clips of the broadcasts could be an infringement.
The outcome in England and Wales Cricket Board appears to be similar to that of the CJEU in Pelham in so far as the result was that even a very short recording may be infringing. Further, both courts took into account similar considerations, referring to the rationale behind the protection (in both cases the protection of investment) and assessing the impact of a reproduction on that. While the UK court applied those considerations when considering the national requirement that a “substantial” part must be copied for it to amount to an infringement, the CJEU found that where the investment was not impacted, it could not be considered a reproduction within the meaning of Article 2 of the InfoSoc Directive.
However, there are differences between the two approaches.
First, while the UK court found that some parts of a sports recoding were more valuable than other parts, the CJEU did not draw any equivalent distinction between different parts of a sound recording. In contrast to the position for original works (which only attract copyright protection to the extent that they are an expression of the intellectual creation of their author) each and every part of the sound recording was treated equally on the basis that it was the entire fixation that was protected. That, coupled with the CJEU’s finding that there is no de minimis requirement for there to be a reproduction, make it difficult to assess infringement by reference to what was copied (as the UK court did in England and Wales Cricket Board) as opposed to the manner or the effect of the copying (e.g. whether it was modified so as to be unrecognisable to the ear).
Nevertheless, in both cases the courts sought to place limits on infringement by reference to whether or not the investment function of the protected right had been impacted. It remains to be see, therefore, how the CJEU might apply its reasoning in Pelham to an alleged reproduction of an un-modified portion of a broadcast – would the court adopt a similar approach as the UK court in England and Wales Cricket Board and, if so, on what basis would it distinguish Pelham, in particular its focus on the ordinary meaning of the language used in Article 2 and conclusion that no de minimis threshold is applicable?
Moreover, while it is possible to broadly equate the CJEU’s approach to original works in Infopaq with a copying a “substantial part” requirement (as the UK Court of Appeal did in Meltwater), it is not as straightforward to do the same with regard to the CJEU’s approach to sound recordings in Pelham. Although the “substantial part” requirement in section 37 of the 2000 Act could arguably be stretched to encompass the thrust of the Pelham judgment (and perhaps would have to be, in accordance with Marleasing principle), the artificial bending of language that approach would require suggests that section 37 might not be the most appropriate provision for giving effect to the CJEU’s judgments on Article 2 of the InfoSoc Directive. That could become even more apparent if and when the CJEU gives judgment on the application of Article 2 to other types of related rights and non-Berne works. For the time being, however, it appears that 2000 Act can be applied in a manner that is consistent with the InfoSoc Directive at least in so far as it is likely to deliver the same results.