On June 17, the EU Advocate General delivered their opinion regarding the second preliminary reference before the Court of Justice of the European Union in a dispute between a German music group and several producers. Specifically, the opinion clarified certain aspects related to the “pastiche” exception provided by the InfoSoc Directive (Directive 2001/29/EC) in light of Article 13 of the Charter of Fundamental Rights of the European Union.
The German band sued the producers for using a sound sample without authorization from one of their songs.
In the first preliminary reference, the Court of Justice ruled that the use of sound samples from existing phonograms, in principle, falls under the exclusive right of reproduction of producers pursuant to Article 2(c) of the InfoSoc Directive if the sample is “audibly recognizable” within the new content.
The EU Advocate General’s Opinion in the Second Preliminary Reference
The German Constitutional Court (Bundesgerichtshof), in the second preliminary reference, asked the EU Court of Justice to clarify the scope of the “pastiche” exception under Article 5(3)(k) of the InfoSoc Directive by formulating questions on the interpretation of the rule.
To respond, the EU Advocate General examined the relationship between copyright, freedom of the arts, and existing exceptions in the European Union legal system.
In particular, they emphasized that copyright, while incentivizing creativity and ensuring exclusive rights for authors over their works, limits the freedom of the arts guaranteed by Articles 11 and 13 of the EU Charter of Fundamental Rights, especially when it hinders the reuse of protected elements in new creations.
As for Article 5(3)(k) of the InfoSoc Directive, it provides that Member States may introduce exceptions and limitations within their legal systems concerning the rights of reproduction and communication of works or other protected subject matter if the use is for the purpose of “pastiche.” This provision aims to balance the rights of right holders with those of users and the public interest, allowing for the free use of protected material under certain conditions.
However, the term “pastiche” has not been adequately defined within the directive, nor has the Court ever ruled to clarify its meaning.
The Definition of Pastiche
The EU Advocate General, in their opinion, proposes a restrictive interpretation of the term “pastiche” based on:
- the usual meaning of the term, which is the imitation of the style of a work, an author, or an era;
- the regulatory context, noting that the term is placed alongside the notions of “caricature” and “parody,” implying their affinity and suggesting that “pastiche” constitutes a form of derivative expression based on imitation;
- the purpose of the exception, which is to protect certain forms of derivative expression.
Therefore, in light of the considerations set out, the EU Advocate General proposed to answer the German Constitutional Court in the following terms: on the one hand, affirming that the concept of “pastiche,” within the meaning of this provision, encompasses an artistic creation that (i) evokes an existing work, adopting its distinctive “aesthetic language,” while (ii) presenting perceptible differences from the imitated source, and (iii) is intended to be recognized as an imitation.
The purpose pursued by this overt stylistic imitation is irrelevant. The use of protected elements from works or other subject matter, including “samples” of phonograms, falls within the corresponding exception where it results in an artistic creation exhibiting these essential characteristics.
On the other hand, the EU Advocate General proposed that Article 5(3)(k) of the InfoSoc Directive be interpreted to mean that the use of a work or other protected subject matter must be considered “for the purpose of pastiche” when the “pastiche” nature of such use is recognizable to persons familiar with the reused protected material and who have the necessary understanding to perceive the “pastiche.”
Conclusion
Within the opinion, the EU Advocate General acknowledges the risk that the broadness of exclusive rights recognized to authors and the rigidity of exceptions can discourage creativity, especially in genres and practices based on reuse such as hip-hop, user-generated content (UGC), and memes.
However, they believe that the system is, on the whole, proportionate and nevertheless hope for further regulatory evolution that could provide, for example, for the introduction of a minimum threshold or targeted exceptions for the use of short excerpts, thus offering greater protection for the freedom of the arts without significantly affecting the investments of right holders.
While awaiting the Court’s ruling, this opinion undoubtedly represents an important interpretive step that recognizes a restrictive approach to the scope of the “pastiche” exception.
The challenge remains to find a balance that ensures adequate protection of works but does not stifle new forms of cultural expression arising from the influence of pre-existing works.
Elena Bandinelli