Opinion of the Advocate General — ECLI:EU:C:2018:1002
Date: 2018-12-12
Language of the case: German
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 August 2017 — Pelham GmbH, Moses Pelham, Martin Haas v Ralf Hütter, Florian Schneider-Esleben (Case C-476/17) 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 Questions referred Is there an infringement of the phonogram producer’s exclusive right under Article 2(c) of Directive 2001/29/EC 1 to reproduce its phonogram if very short audio snatches are taken from its phonogram and transferred to another phonogram? Is a phonogram which contains very short audio snatches transferred from another phonogram a copy of the other phonogram within the meaning of Article 9(1)(b) of Directive 2006/115/EC 2 ? Can the Member States enact a provision which — in the manner of Paragraph 24(1) of the Gesetz über Urheberrecht und verwandte Schutzrechte (German Law on Copyright and Related Rights) — inherently limits the scope of protection of the phonogram producer’s exclusive right to reproduce (Article 2(c) of Directive 2001/29/EC) and to distribute (Article 9(1)(b) of Directive 2006/115/EC) its phonogram in such a way that an independent work created in free use of its phonogram may be exploited without the phonogram producer’s consent? Can it be said that a work or other subject matter is being used for quotation purposes within the meaning of Article 5(3)(d) of Directive 2001/29/EC if it is not evident that another person’s work or another person’s subject matter is being used? Do the provisions of EU law on the reproduction right and the distribution right of the phonogram producer (Article 2(c) of Directive 2001/29/EC and Article 9(1)(b) of Directive 2006/115/EC) and the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29/EC and Article 10(2), first sentence, of Directive 2006/115/EC) allow any latitude in terms of implementation in national law? In what way are the fundamental rights set out in the Charter of Fundamental Rights of the European Union to be taken into account when ascertaining the scope of protection of the exclusive right of the phonogram producer to reproduce (Article 2(c) of Directive 2001/29/EC) and to distribute (Article 9(1)(b) of Directive 2006/115/EC) its phonogram and the scope of the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29/EC and Article 10(2), first sentence, of Directive 2006/115/EC)? ____________ 1 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, OJ 2001 L 167, p. 10. 2 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, OJ 2006 L 376, p. 28.