Sampling som upphovsrättslig metod : Vilken typ av kreativitet är skyddsvärd enligt den moderna upphovsrätten?

Sammanfattning: Copyright has been struggling to keep up with the fast-paced technological advancements and the development of the information society during the last couple of decades. The shift from the analogue to the digital has made it possible to create precise copies out of original works without any quality loss. This makes it harder to monitor the use of protected works, but it also invites to new creative practises involving the use of already existing works. Sampling music is one of these practices, which has become more accessible in music production since the 1980’s because of the technological advancements. One way of describing sampling is when a part of an existing phonogram, often protected by copyright, is incorporated in a new musical work.  The copyright legislation, represented in inter alia the Information Society Directive encourages the maintenance and development of creativity by providing a high level of protection to authors and other rights holders. This thesis therefore examines in which ways music sampling is allowed under the copyright legislation to seek a better understanding of which type of creativity that falls within the scope of copyright.  The Court of Justice of the European Union (CJEU) has shed some light upon this question regarding a phonogram producer’s reproduction right in judgment of the Court (Grand Chamber) of 29 July 2019, Pelham, C-476/17, EU:C:2019:624. The Court found inter alia that sampling does not infringe a phonogram producer’s reproduction right if the sample is unrecognisable to the ear in the new musical composition. The CJEU also acknowledges that the use of samples in music production can be an exercise of the freedom of the arts protected by article 13 of the Charter of fundamental rights of the EU.  This thesis also examines the author’s right to his work, and a performer’s right to his performance and considers the exhaustive list of exceptions and limitations in the Information Society Directive. It is concluded that the copyright legislation does not leave much room for sampling without a license from the relevant rights holders. Furthermore, it is argued that the CJEU ruling in Pelham has limited a more “ideal” approach set by the Swedish Supreme Court, when interpreting if a potential work should be considered a new work or a reproduction of another work.  It is also concluded that the Information Society Directive’s aim at developing creativity can be interpreted as more of an economic goal in making the whole creative industry blossom, rather than making every creative expression desirable under copyright law. This can however be questioned when examining the two main philosophical motives behind copyright as a legal area.