The legality of music sampling in Sweden : Complicated issues demand complicated measures

Abstract: The legality of music sampling is in Sweden unknown. The reason for this is mainly the lack of relevant case law and that the legislation and legislative history has not reach clarity within this subject. There are generally two different routes and perspectives on sample issues. The first main route is that samples should be judged according to the “common” copyright rules where originality, similarity and other factors need to be investigated. The second route is that sampling issues should be judged upon the neighbouring rights, and within these rules no other tests needs to be included. It is simply an infringement if it is proven that someone has in fact sampled a recording. American case law has inherent both views and most often are pending between these views. German case law however made it clear in the Kraftwerk case that the neighbouring rights are used within German law. Through this inconsistency the authors have not found any clear indications which rules a Swedish court would apply. Due to the relationship between Sweden and Germany, and that they are both members of the European Union the authors believe that Sweden will judge accordingly to the neighbouring rights. However, the authors believe that the neighbouring rights were created for the purpose to contradict piracy and not sampling disputes. Furthermore, neither the legislative history nor judicial literature gives any indications that the neighbouring rights should be used when a part of a work has been altered and used in a new work. The author’s personal beliefs are therefore that the neighbouring rights should not be applied on sampling cases. The “common” copyright rules should instead be applied which includes originality and similarity tests.