Blog post by Stephen Wyber
In June 2025, Advocate General (AG) Emiliou of the Court of Justice of the European Union (CJEU) delivered his opinion in the case of CG, YN v Pelham GmbH, SD, UP (C-590/23), better known as Pelham II. Although the case concerns music sampling and the copyright exception for “pastiche” in Article 5(3)(k) of the InfoSoc Directive (2001/29/EC), its reasoning may have broader implications.
There have already been analyses of the opinion from Sabine Jaques and Elena Izyumenko. This blog openly speculates about what we might be able to draw from the opinion for research.
Indeed, if we apply Emiliou’s logic to another sphere of freedom protected under the EU Charter — scientific research — we find arguments that could support a more open, innovation-friendly approach to copyright and related rights.
What the Opinion Covers
Pelham II revisits the longstanding debate over the lawfulness of sampling in creating new music. It deals with the question of what the exception from copyright for ‘pastiche’ in Article 5(3)(k) of the InfoSoc Directive (2001/29/EC) covers, and to what extent broader artistic freedom rights (as protected by the European Charter of Fundamental Rights) may provide a defence against accusations of copyright infringement, and indeed a justification for copyright exceptions.
The Pelham case has already given rise to a previous CJEU decision, known as Pelham I, which focused on whether sampling in general was a copyright issue, and whether the quotation exception could help (answer: no, given that the samples used were unrecognisable).
Pelham II returns to the question, asking whether a pastiche exception could apply. Fulfilling his role to provide an opinion which can help inform the final rule of the judges (without binding them), AG Emiliou therefore provides a response to the question of the applicability of pastiche, finding that this is not the case here (see below for more). However, he then allows himself also to explore the wider interaction between artistic freedom on the one hand, and copyright and related rights on the others.
In the context of this exploration, tantalisingly, the opinion quotes the European Charter of Human Rights in a section title, as: “the arts… shall be free of constraint”. What is hiding behind the three dots are the words “scientific research”. This raises the question of what the AG might have said if the question in hand was not around the use of samples of music to create new songs, and rather concerned uses of copyrighted works in the context of research.
Background: What the Opinion Says
First of all, the AG sets out a summary of the original (German) case (Pelham I), in which the Court determined that following the InfoSoc Directive, the pre-existing German ‘free use’ provision did not apply, and nor did the quotation exception in EU law offer any help, given that the sample did not enter into ‘discourse’ with the original work (see Justin Jutte’s piece for more). He then explores the applicable European law in this space, before turning to the connection between artistic freedom and the powers created by copyright.
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In this context, he frames the relationship between the strictness of copyright protection and artistic freedom as a bell curve. At one end, weak protection risks undermining incentives and original markets. At the other, excessive protection blocks the reuse and reinterpretation that are integral to artistic progress. For example, he suggests, the over-application of technological tools such as digital rights management has amplified control to the point of having a “chilling effect” on new creations.
Turning to the pastiche exception, AG Emiliou argues that it does need to be defined at the European level, but then rejects the arguments of the defendants that it should allow for all reasonable reuses of a work that imply a recognisable borrowing from an existing work and its style while remaining notably different.
Having effectively dismissed the existing pastiche exception as a grounds for permitting the type of re-use covered in the Pelham II case, the AG then turns the question around. Setting out artistic freedom (and hence the possibility to re-use existing works) as a fundamental right, he then asks if the restrictions placed upon this by copyright and related rights are proportionate (paragraph 99). He argues strongly that the need for an artist to ask for a licence should be considered as a restriction, given that this can be costly and complex, and maybe even impossible (paragraph 103).
While noting that copyright can be seen as an enabler, rather than a restriction, he pointedly suggests that this is a question of a trade-off between the ‘rightholders of yesterday’ and the ‘creators of tomorrow’ (paragraph 105). There is some flexibility for legislators to choose which path to follow here (favouring either rightholders or re-users), but he is also clear that there are limitations – it is possible to get this balance wrong.
Subsequent paragraphs in the Opinion set out the argument that the current balance of rights and exceptions is indeed wrong when it comes to the protection offered to record producers (paragraphs 112-125). He dismisses arguments about re-use being akin to ‘stealing’, stressing that just because rightholders can license things, it does not mean that they should. Furthermore, the AG underlines that the investment-protection rationale does not represent a justification for revenue maximisation at the expense of future creation. Indeed, he is clear that the rights of corporate rightholders have much less of a basis in human rights law than those of actual people.
Linked to this, the AG does suggest that there is a finer line when it comes to authors’ copyrights (as opposed to producers’ or broadcasters’ related rights) – the balance between the artistic freedom of the original creator (rather than the commercial interests of a corporate rightholder) and that of the subsequent re-user is more complex.
Finally, he argues that there could be scope to introduce a new type of ‘free use’ provision which would create the space for original creations which nonetheless draw on existing works. This would offer a clearer solution than the ‘implied tolerance’ (or rather near-impossibility of enforcement) necessary for hip-hop to emerge (paragraph 131).
Relevance for Research: Implications for Scientific Freedom
Article 13 of the Charter states that “the arts and scientific research shall be free of constraint.” AG Emiliou’s opinion focuses on the first half of that sentence, but its reasoning naturally extends to the second. Both freedoms share constitutional status. The proportionality test for restrictions on artistic freedom therefore applies to scientific freedoms as well.
Crucially, the opinion underlines that there is a need in European law to find a way through the middle of the potential tension between copyright and the freedom to develop new insights. With scientific freedom sitting alongside artistic freedom in the Charter, it would be hard to argue that the same principle does not apply to both.
If we replace artistic with scientific freedom in AG Emiliou’s analysis, many arguments resonate: the harm that can be done by revenue maximisation on the part of rightholders (notably by controlling or otherwise denying uses unless there is payment), the limits of licensing as a tool for enabling use, the threats to the legitimacy of copyright from over-rigid laws, and the bankruptcy of the idea that reproduction and re-use necessarily requires remuneration.
In particular, the argument that investment protection on behalf of corporate rightholders such as scholarly publishers should not automatically trump re-use, is a powerful one, given the role of research precisely in advancing scientific progress. It is all the more so in light of the fact that rightholders are often companies who obtain works for free and subsequently often act as gatekeepers to taxpayer supported science. Were Pelham II to have been focused on scientific freedom, these factors may well have come into the discussion.
Towards an Open Norm For Research
AG Emiliou’s call for a “free use” provision for artistic creation invites a parallel for science: a flexible research exception or open norm. Such a clause could explicitly permit activities like text and data mining (TDM), reproduction for verification, or machine-learning training for public-interest research, without prior authorisation.
Both versions of “free use” — artistic and scientific — would share key features:
- Adaptability: capacity to evolve with technology.
- Proportionality: protection of original markets without freezing re-use.
- Mandatoriness: ensuring equal application across Member States.
Evidence supports this direction. As KR21-commissioned research has shown, flexible exceptions for research promote innovation without harming creative industries.
Conclusion
Pelham II may be a case about music, but its underlying question — how far copyright should limit freedom to create and build upon existing works — reaches beyond the arts. Applying its logic to science highlights the need to align copyright with the EU’s constitutional commitment to both artistic and scientific freedom.
As the European Research Area Act approaches, policymakers should seize the opportunity to turn this principle into practice. Protecting yesterday’s investments must not come at the expense of tomorrow’s discoveries.
30 October 2025
