# C_2019319EN.01000601.xml

| 23.9.2019 | EN | Official Journal of the European Union | C 319/6 |
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23.9.2019

EN

Official Journal of the European Union

C 319/6

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Judgment of the Court (Grand Chamber) of 29 July 2019 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Pelham GmbH, Moses Pelham, Martin Haas v Ralf Hütter, Florian Schneider-Esleben

(Case C-476/17) (1)

(Reference for a preliminary ruling - Copyright and related rights - Directive 2001/29/EC - Information Society - Harmonisation of certain aspects of copyright and related rights - Sampling - Article 2(c) - Phonogram producer - Reproduction right - Reproduction ‘in part’ - Article 5(2) and (3) - Exceptions and limitations - Scope - Article 5(3)(d) - Quotations - Directive 2006/115/EC - Article 9(1)(b) - Distribution right - Fundamental rights - Charter of Fundamental Rights of the European Union - Article 13 - Freedom of the arts)

(2019/C 319/05)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellants on a point of law: Pelham GmbH, Moses Pelham, Martin Haas

Respondents in the appeal on a point of law: Ralf Hütter, Florian Schneider-Esleben

Operative part of the judgment

| 1. | Article 2(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must, in the light of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear. |
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1.

Article 2(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must, in the light of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear.

| 2. | Article 9(1)(b) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram does not constitute a ‘copy’, within the meaning of that provision, of that phonogram, since it does not reproduce all or a substantial part of that phonogram. |
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2.

Article 9(1)(b) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram does not constitute a ‘copy’, within the meaning of that provision, of that phonogram, since it does not reproduce all or a substantial part of that phonogram.

| 3. | A Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of that directive. |
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3.

A Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of that directive.

| 4. | Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question. |
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4.

Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question.

| 5. | Article 2(c) of Directive 2001/29 must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law. |
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5.

Article 2(c) of Directive 2001/29 must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law.

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(1)  OJ C 347, 16.10.2017.

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