ECJ Kraftwerk: “What we’re gonna do right here is go back. Way back!”

The Grand Chamber of the European Court of Justice (15 judges) decided yesterday in it’s infinite wisdom that use of a recognizable music sample (however short) is not permitted without authorization from the phonogram producer (i.e. the owner of the recording). 

The judgment reminds me of a famous sample from a track by Jimmy Castor and the Funky Bunch: “What we’re gonna do right here is go back. Way back. Back into time!” (see https://lnkd.in/e-vHvBw) The Court effectively sacrifices standing sample practice in favor of the earning power of owners of old recordings (who arguably have already earned their fair share). 

The Court does attempt to strike a balance between the freedom of the arts (of the sample user) and the exclusive rights of the phonogram producer, but IMHO fails miserably. According to the judgment, use of a sound sample “in a modified form unrecognisable to the ear” is not a reproduction, and therefore falls outside the scope of protection of the phonogram producer. Beautiful thought, but the whole idea behind 99.9% of samples is to use a recognizable sound snippet.