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CJEU roundup: Kraftwerk, Red Bull and more



Ed Conlon and Max Walters, London


It was a busy day for the CJEU yesterday as it handed down three rulings on copyright and one on trademarks

Kraftwerk sampling row plays out in court 

In this decision, the court said that sampling part of a song without authorisation can infringe a producer’s rights, but that if the sample is taken in a modified form “unrecognisable to the ear,” no infringement occurs, even without prior authorisation.

The case involves members of the German techno group Kraftwerk and surrounds their 1977 track Metall auf Metall. 

The band’s members had sought an injunction on the basis that rapper Moses Pelham had included, without their permission, a two-second loop recording of a sequence from Metall auf Metall in his song Nur Mir.

A lower court backed Pelham but Germany’s Federal Court of Justice then asked the CJEU whether the non-authorised inclusion of the sample constitutes an infringement of copyright. 

In its judgment yesterday, the court said that the reproduction of a sound sample, even if very short, must be regarded as a reproduction “in part” of that phonogram. 

However, it added that where a user takes a sound sample “in order to embody it, in a modified form unrecognisable to the ear in another phonogram,” it is not a reproduction.

The judgment added that German legislation which provides for an exception allowing a distinct work, “created in the free use of a protected work,” to be published and exploited without the consent of the rights owner, does not conform with EU law. 

Hot off the press: copyright and current affairs 

This case centred on news reporting and whether, for the purpose of reporting current events, outlets need to seek authorisation to use copyright-protected work. 

In its ruling, the CJEU said that they do not need to seek permission “in principle.” 

The court was asked to rule on a dispute between former German politician Volker Beck and Spiegel Online, a news website.

Beck (under a pseudonym) wrote a manuscript on the criminal policy relating to paedophilia which appeared as an article in a book published in 1988. 

In 2013, that manuscript was discovered in archives and it was put to him when he was standing for election to Germany’s Parliament. Beck was an elected member of the Green Party from 1994 to 2017.

He submitted that the meaning of the manuscript had been altered by the publisher of the book and provided various newspaper editors with his manuscript to show it had been changed. 

Although he did not give consent for the editors to publish the manuscript, he did publish it, along with the book contribution, on his own website and indicated that he distanced himself from alterations.

Spiegel Online published an article in which it contended that, contrary to Beck’s claim, the central statement in his manuscript had not been altered. It made the original versions of the manuscript and book contribution available to its readers for download by means of hyperlinks.

Beck claimed that, as he had not given consent for publication, this constituted copyright infringement. 

A lower court ruled in Beck’s favour but the Federal Court of Justice referred questions to the CJEU on what scope is available under the 2001 Copyright Directive relating to the reporting of current events and quotations.

Member states, the CJEU said, have “significant discretion” and that the protection of IP is not absolute. It added that it is necessary, where appropriate, to take into account the fact that the nature of the “speech” or information at issue is of particular importance, notably in political discourse and matters of public interest.

The court added that media outlets can quote from a protected work via a hyperlink, provided that the work had been previously made available with the approval of the copyright owner.

Germany left to handle internal copyright war 

National courts must decide whether military reports are protected by copyright and, if so, consider whether their use can be exempted under the EU Copyright Directive, the CJEU ruled. 

The case arose in Germany, where the Federal Republic sued media company Funke Medien for publishing classified military reports which, it claimed, were protected by copyright. Germany’s highest court, the Federal Court of Justice, referred the case to the CJEU.

In yesterday’s ruling, the CJEU said national courts should determine whether such reports can be regarded as copyrightable works. If they do, freedom of information and freedom of the press are not capable of justifying, “beyond the exceptions or limitations provided for in the 2001 Copyright Directive, a derogation from copyright, in particular, from the author’s exclusive rights of reproduction and of communication to the public.”

The court added that, based on case law from the European Court of Human Rights on striking a balance between copyright and the right to freedom of expression, the nature of the relevant ‘speech’ or information is particularly important, including in political and public interest discourse. 

“In those circumstances, having also underlined the way in which Funke Medien published the military status reports on the internet, the CJEU states that it is not inconceivable that such use may be covered by the exception concerning current events reporting provided for in the Copyright Directive.”

No silver lining for Red Bull TM appeal

The CJEU dismissed Red Bull’s appeal against the General Court’s ruling that had upheld an EUIPO board of appeal’s decision affirming that two colour combination marks were invalid.

According to the General Court in 2017, the graphic representation of those marks – a 50:50 split between the colours blue and silver – constituted the “mere juxtaposition of two or more colours, designated in the abstract and without contours.”

Red Bull filed five grounds of appeal, claiming, for example, that the General Court misinterpreted earlier case law and infringed the principles of equal treatment and proportionality in connection with the Community Trademark Regulation (No. 207/2009).

But the CJEU rejected all of them, either as unfounded or inadmissible. 

The dispute dated back to 2013, when Polish company Optimum Mark applied to invalidate the first of the two Red Bull marks. 

After the General Court’s ruling two years ago, lawyers said it was the “death knell” for Red Bull’s attempt to register its blue and silver combination, arguing that the judgment reinforced the difficulty of registering colour combination trademarks in the EU.

In its ruling yesterday, the CJEU ordered Red Bull to pay costs. 

Managing IP will provide further analysis on the four rulings this week.


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