Even the institutions are waking up to the fact that copyright law is unfair

You all probably are familiar with copyright law. Broadly speaking, at least: Disney owns Star Wars, and only they are allowed to do stuff with it. In other words, Disney has a sort of “commercial monopoly” on what you can or cannot do with those characters, or with parts or the entirety of those movies. Together with patents and trademarks, copyright is considered an “intellectual property” (IP), Disney is the “rights holder” which “owns the IP”.

IP rights have been strengthened pretty much non-stop for the past 50 years. From the first scare of home taping (which resulted in TRIPS) to the scare of file sharing (resulting in the DMCA in the US, and InfoSoc in the EU) to the EU copyright directive of 2019, we have seen copyright developed into a tool from which there is barely any escape.

At its conception, copyright was meant as a tool to protect authors from publishers. Publishers back then, much like AI companies today, looked at the wealth of knowledge and stories found in the local library and just yoinked whatever they liked, and printed it en masse. Yet, through the magic of capitalism, a few centuries later we now have a system that is primarily concerned of the well-being of publishers, not authors.

A 20+ year long lawsuit

Which brings us to today’s item I want to discuss: The European Court of Justice’s Attorney General’s opinion on Case C-590/23. This is a lawsuit of Kraftwerk vs Pelham, where Kraftwerk made a song (“Metall auf Metall”), and Pelham sampled the drum loop of it in his song “Nur mir”. To be clear, the two songs here are completely dissimilar:

On the surface, this is an entirely benign problem to have, but thanks to copyright, it turned into one of the most complicated cases we can have, questioning the very foundation of copyright law and creative freedom.

I’ll do my best to paraphrase and condense it down to a more casual audience; if you are a bit more familiar with the matter, I recommend reading the original opinion.

The core point the AG is making is that, thanks to the relentless lobbying of the big rights holders, copyright has now advanced to a stage where artists cannot really safely use or reference the material that is available in the public to craft something new. No, you must be able to fit your new work into a very narrow range of copyright exceptions (quotes, parody, pastiche or a handful more), which through the nature of creativity, is always going to be inadequate. There are few things harder to categorize than the entire spectrum of human creativity.

What is a pastiche?

A pastiche is – well, that’s the big question. Formally, the ECJ just needs to provide a more thorough definition than what’s written in law, because nobody knows what the fuck a pastiche is. But for the lack of something better, a pastiche is when you use certain elements of a creative work to evoke its feeling, without being a parody. So for example, when you want to film a classic Western, you’ll use certain tropes (bad guy wears black, wild west, sheriff, horses, guns, alcohol, high noon, etc) and techniques (cowboy-shot, ultra-close-up, etc) and whatever else. However, that’s a bigber thing and not really what Pelham did with his sampling. He just liked a beat and wanted to use the beat in his song. So that’s not really a pastiche as per my definition, it’s too little referential for that.

And because it’s not, it’s being laid out as a copyright violation as if he had reuploaded the original song unmodified. Regardless of the fact that Pelham made a hip-hop song and the original is an electro-avantgarde song, that doesn’t matter.

Can we use other exceptions?

Besides a pastiche, there are other exceptions one could go for. However, all of them are very narrowly scoped, so it’s hard to use them by accident. To make a quote or a parody, you have to try really hard to make those happen in a copyright sense; for example, merely writing “Iwbnfouevcmifnruimmmvn Government” — Winston Churchill on a postcard would not qualify as a quote because it’s not embedded into a work that does something with it. However, me writing this description on why it wouldn’t be a quote now makes it a quote in the context within this article. Probably. Sue me, Churchill estate, I’d be down to open up another 20 year long copyright case over silly stuff.

Anyhow: Everything but the pastiche is already properly defined, leaving the copyright cage with very few weak points. So the ECJ will need to figure out whether or not a pastiche is this weakpoint.

pastiche vs pastiche, EU vs EU

Since the copyright directive was drafted, two camps on the “what is a pastiche” have developed:

• “imitating doesn’t mean using”. The law states that the feeling of the original work(s) must be imitated, but it doesn’t mention using.
• “using an original is recognizable of the original”, therefore, remixes, mashups, memes, gifs, sampling and such are legal.

The German government, the European Commission, Pelham and others support the latter meaning, but the Attorney General notes:

While I have sympathy for the interpretation suggested by Pelham and Others, the German Government and the Commission (for it is a well-intended attempt to provide a pragmatic solution to the issue of creative reuse of protected material […] I am afraid, to conclude (in most, but not all aspects) in favour of [the former interpretation].

The AG then goes on to a long linguistic exercise which I’m sure everyone involved had enormous amounts of fun with (the AG’s opinions are translated into all EU languages), followed by another section analyzing how wide the scope of a parody and a quote is compared to a pastiche. Finally, almost 100 paragraphs in, we get to the truly juicy bits.

Copyright vs freedom of the arts

Pastiche aside, there is a certain pulling in different direction in the law: On the one hand, the freedom of the arts must be preserved in essence, the EU charter (think: constitution) says so. However, it can be proportionally limited where benefits outweigh the cost. So where is this proportionality?

We’re all familiar with the (supposed) benefits of copyrights – artists can sell their works this way, as they have the sole right to their own works. The AG lays out the downsides:

For instance, to borrow legally a ‘sample’ of a phonogram [think “song from a CD”] and use it in a new composition, an artist would, as a rule, need to obtain (i) necessarily a licence for the use of the phonogram and (ii) potentially a licence for the use of the underlying work (if the ‘sample’ embodies ‘original’ elements of the latter).  In addition, the ‘sample’ may also trigger the related right of reproduction of the interpreter of the recording, requiring further authorisation. In that regard, beyond the fact that the rightholders are not always known or easy to locate, obtaining such licences will often be too much of a burden for new creators.

A workaround for this could be compulsory licenses, so a central system where you just send in a list of what songs you used, and the central system then figures out who gets the money. The GEMA in Germany grants such licenses, albeit only for public playback and not to incorporate a song into another work. But:

 In the absence of a system of framed, compulsory licences for artistic reuse of works or phonograms (and so on), it is the freedom of contract that rules. However, the parties are not in the same negotiating position. The copyright system leaves rightholders entirely free to grant, or not to grant, a licence,which puts them in a strong bargaining position from the outset. They may claim, for the use of their material, a fee which may not be commensurate to the revenues that the ‘derivative’ creation could generate, should it be exploited.

Furthermore, the artists of yesterday and their producers (such as ‘the big majors’) will often have the financial means necessary to reinforce their bargaining position. While other famous artists and producers will be in a position to negotiate at arm’s length, that will not be the case for small artists. This leads to a risk of a ‘two-tier’ possibility of creation, with ‘derivative’ works being something reserved to the mighty and wealthy.

Finally, the rightholders of yesterday may simply refuse to permit the reuse of their work, leading to creators having to choose between (i) not creating the envisaged artwork or (ii) re-using the protected material anyway, and facing the risk of a costly infringement claim. Such constraints are particularly formidable when the art form at issue depends on concrete borrowing, such as ‘sampling’ (but also collage, and so on). Overall, it may stifle many a form of creation.

Draconian measures over nothing

In the many years this case has been going on, the law has changed several times: Back when Pelham made the song in 1997, what he did was legal. However, following the enforcement of InfoSoc on 22 Dec 2002, his song has become illegal, and it definitely was illegal from then up til the new EU copyright directive was implemented a few years ago – German supreme court has made that ruling.

The exceptions are so narrow, yet get applied to a wide spectrum of creativity. And when not fitting into an exception, one gets punished as if they just sold a billion copies of pirated Star Wars movies and caused George Lucas to die penniless.

In the AG’s opinion:

With respect to the related rights granted to producers of phonograms, films and broadcasts, as interpreted by the Court, [the balance between the freedom of the arts and rewarding existing creators with exclusive rights] is manifestly wrong.

This is also what the German constitutional court found. The AG continues with a pounding of the Disney Lobby in general:

Indeed, in that balancing exercise, freedom of the arts under Article 13 of the Charter should carry significant weight. That is so because, as an emanation of freedom of expression, it ‘constitutes one of the essential foundations’ of a democratic society. Indeed, the right for everyone to take part in the cultural life of the community is ‘one of the basic conditions for [such a society’s] progress’. 

By contrast, the claim of producers and broadcasters under Article 17(2) of the Charter is less compelling. I recall that the right of intellectual property laid down in that provision must be considered in relation to its function in society. In other words, the protection of the ‘property’ of the producer or broadcaster is not an end in itself. The exclusive related rights over phonograms, films and broadcasts should be considered in the light of their justification. In fact, as limitations on everyone’s freedom of the arts, those rights must not be given a wider scope than is required by that justification. 

In my view, the investment-protection rationale that justifies the related rights granted to producers and broadcasters, explained in point 28 above, irrespective of its merits, cannot require, in the light of freedom of the arts, those related rights to cover the creative reuse of any ‘recognisable’ extract of phonograms, films or broadcasts.

The mere fact that producers and broadcasters may draw revenue from licensing such extracts is not, in itself, relevant. The related rights were designed to ensure that the sales of, and lawful transactions related to, those subject matters are not threatened by illegitimate copies, so that the producers and broadcasters can obtain satisfactory returns from them and redeem the investment they put into their production. They were not designed to guarantee producers and broadcasters a possibility to collect the highest possible remuneration from their phonograms, films and broadcasts, through the licensing of any extract. 

It’s moments like this I love this case for. We’re well beyond the problem of “can I use 2s of a Kraftwerk song?”, we’re now fundamentally asking ourselves “but why did we hand the entirety of creativity to the Culture Industry?”

Where to go from here?

The Attorney General made his statements. For those unfamiliar with the workings of the European Court of Justice, after the parties to the case have stated their positions, it’s the AG’s job to produce an independent first evaluation and collection of the case, to assist the judges in their decision finding. The judges usually do follow the AG’s recommendation, but not always.

Unfortunately for us, despite those pretty damning paragraphs quoted above, the AG does end with “just use a definition for a pastiche”, and it’s entirely possible that the ECJ’s judges end up deciding that they’d rather not open this particular can of worms by trying to assess the balance between copyright and freedom of the arts.

However, this does show that there is broad support for a true copyright reform, both from the civil society, from institutions – just not from the Disneys of the world. We should keep pushing for a reform, one which supports artists and creators instead of publishers and AI tech firms.