Musiksampling och upphovsrätt : I ljuset av EU-domstolens avgörande i mål C-476/17 Pelham
Sammanfattning: This thesis explores the legal framework revolving music sampling, which recently has been brought to light after the judgment of the European Court of Justice (CJEU) in the case of C-476/17 Pelham. Before this judgment, the correlation between music sampling and Copyright Law was unclear, whilst music sampling had obtained a global cultural status. It is therefore important to clarify some aspects of Pelham and further analyse its potential consequences. Consequently, this thesis establishes the applicable legal regulation regarding music sampling. In this matter, the CJEU concluded that music sampling, even if very short, should be defined as an act of reproduction in accordance with article 2 of the Infosoc Directive, unless that sample is included in a phonogram in a modified form unrecognisable to the ear. Therefore, the next research question for this thesis is how the assessment whether or not a sample is recognisable to the ear should be measured. The answer to that question is uncertain, Swedish case law does however point to a solution where courts should take into account the subjective impressions of a collective group of individuals. The court should furthermore take into account the facts in the specific case to create an overall assessment. Another research question that is discussed in the thesis is the relationship between copyright infringements relating to music sampling and other types of “traditional” copyright infringements such as plagiarism. Here it is important to separate music sampling from plagiarism, as music sampling is considered to be reproduction by nature, and other types of plagiarism demands a complex assessment that entails many different factors. Lastly, this thesis sheds light to the balance of interest between the protection of intellectual property and freedom of the arts including freedom of speech. Although there are many compelling arguments as to why music sampling should be allowed to a greater extent, the conclusion is that the balance of interest should guarantee a protection of both the economic and moral rights connected to Copyright Law. It would furthermore be a complex task technically to create an exception for music sampling; hence the judgment of the CJEU was perhaps not that surprising.
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