A human right to sample—will the CJEU dance to the BGH-beat?

Jütte, Bernd Justin; Maier, H.

doi:10.1093/jiplp/jpx096

Cited by 5 publications

(5 citation statements)

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“… 8 For positions in favour of such a broad understanding of pastiche, see e.g. Dreier ( 2019 ), p. 1005; Dreier ( 2020 ), p. 223; Jütte and Maier ( 2017 ), pp. 790–791; Stieper ( 2020a , b ), p. 754.…”

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confidence: 99%

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Collateral Damage: Reuse in the Arts and the New Role of Quotation Provisions in Countries with Free Use Provisions After the ECJ’s Pelham, Funke Medien and Spiegel Online Judgments

Hui

Döhl

2021

IIC

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This article examines the impact of the European Court of Justice’s Pelham decision (C-476/17) on reuse, including appropriation art, borrowing and plagiarism in the arts, especially in music. Insofar, the focus lies on countries that have operated before with broad free use provisions. Specifically, we consider the extent to which EU law permits quotation provisions to fill the gap left by free use limitations, which have been curtailed by the Pelham decision. As we explain, Pelham creates a more restrictive approach to certain unlicensed use of copyright materials in new works of artistic expression, including music appropriation. We present our research in four sections. First, we compare existing national free use and quotation provisions in four states subject to EU law regarding their respective wiggle room for unlicensed yet lawful reuse in the arts. Second, we explore how the ECJ’s interpretation of the InfoSoc quotation exception, particularly in the Pelham, Funke Medien and Spiegel Online judgments, minimises the leeway for reuse in the arts provided by these national quotation provisions, in comparison to free use provisions. (Information Society Directive, 2001/29/EC.) Third, we address possible objections to our position and explain why we believe the consequences of the ECJ decisions cannot be bypassed. (Copyright in the Digital Single Market Directive, (EU) 2019/790.) Finally, in the conclusion, we explore the consequences, including the need for legislative reform.

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“… 130 See Dreier ( 2019 ), p. 1005; Dreier ( 2020 ), p. 223; Jütte and Maier ( 2017 ), pp. 790–791; Stieper ( 2020a , b ), p. 754.…”

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Collateral Damage: Reuse in the Arts and the New Role of Quotation Provisions in Countries with Free Use Provisions After the ECJ’s Pelham, Funke Medien and Spiegel Online Judgments

Hui

Döhl

2021

IIC

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“…1 Reference to the Charter has brought certain advantages. 2 In (C-201/13) Deckmyn v Vandersteen, for example, the concept of a "fair balance" between competing rights facilitated the development of workable rules in an incomplete area of the acquis. 3 While Article 5(3)(k) of the Information Society Directive ("the Directive") permits member states to implement an exception for "caricature, parody or pastiche", it does not provide the necessary boundaries for the appropriate functioning of the exception.…”

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confidence: 99%

“…5 The reference to 'fair balance" in Deckmyn, and other Judgments of the Court, 6 also disguises continuing uncertainty about significant aspects of the system of rights protection applicable in this context. 7 What, for example, is the relationship between the apparently inviolable "essence" of each of the rights protected under the 2 And has been welcomed by some commentators. See, for example, P. Oliver & C. Stothers [12]; C. Geiger [5].…”

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European Union copyright law and the Charter of Fundamental Rights—Advocate General Szpunar’s Opinions in (C-469/17) Funke Medien, (C-476/17) Pelham GmbH and (C-516/17) Spiegel Online

Griffiths

2019

ERA Forum

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Increasingly, national courts have begun to consider the impact of the Charter of Fundamental Rights on EU copyright law. In (C-469/17) Funke Medien, (C-476/17) Pelham GmbH and (C-516/17) Spiegel Online v Volker Beck, the German Federal Supreme Court has referred a series of important questions about the relationship between the Charter, copyright law and national constitutional norms. This article explores the Opinions of Advocate General Szpunar in those cases and considers some of the broader potential consequences of the approach that he advocates.

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Forcing Flexibility with Fundamental Rights: Questioning the Dominance of Exclusive Rights

Jütte

2019

EU Internet Law in the Digital Era

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A human right to sample—will the CJEU dance to the BGH-beat?

Cited by 5 publications

References 5 publications

Collateral Damage: Reuse in the Arts and the New Role of Quotation Provisions in Countries with Free Use Provisions After the ECJ’s Pelham, Funke Medien and Spiegel Online Judgments

Collateral Damage: Reuse in the Arts and the New Role of Quotation Provisions in Countries with Free Use Provisions After the ECJ’s Pelham, Funke Medien and Spiegel Online Judgments

European Union copyright law and the Charter of Fundamental Rights—Advocate General Szpunar’s Opinions in (C-469/17) Funke Medien, (C-476/17) Pelham GmbH and (C-516/17) Spiegel Online

Forcing Flexibility with Fundamental Rights: Questioning the Dominance of Exclusive Rights

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