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If it’s not too much harm to the owner, one may use foreign beats. The Federal Constitutional Court makes sampling even for laymen possible again. And raises new questions, probably Metal on metal III must answer shows Georg Lecheler .
The Bundesgerichtshof (BGH) is located after the announced on Tuesday ruling by the Federal Constitutional Court (BVerfG v. 05.31.2016, Az. 1 BvR 1585/13) a third time with the dispute between power plant on one side and Moses Pelham on have to deal with other side. The First Senate of the highest German court has the free use of foreign Beats basically allows again: The artistic expression of freedom can justify an interference with the right of phonogram producers but easier than the Supreme Court accepts it.
Kraftwerk and Pelham arguing since 1999 on two measures from the play “Metal on Metal”, the Düsseldorf band had recorded 1977th Rapper and producer Moses Pelham took this about two seconds long piece and put in order the 1997 song “Only me” by Sabrina Setlur. Kraftwerk saw his rights violated by this standard, especially in rap and hip hop called sampling.
The Hamburg Regional Court ruled in 2004 in favor of the icons of electropop, the Higher Regional Court (OLG) Hamburg confirmed in 2006 a violation of power plant phonogram producers rights. The Supreme Court said in 2008, although the opinion of the lower courts that also “smallest Tonfetzen” are recognized by the phonogram producer rights. The federal judges referred the dispute but returned, in order to examine the OLG, whether the interference with this right is not yet justified having regard to the free use of § 24 German Copyright Act (UrhG) (BGH,. V. 20.11.2008, Az I ZR 112/06 -. metal on metal ). The OLG did, it said no and gave Kraftwerk 2011. Law.
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BVerfG: without harm no sampling ban
The Supreme Court has ruled in favor of power plant in 2012 held (ruling of December 13, 2012, Az I ZR 182/11 -. metal on metal II ). The i.a. for copyright and intellectual property law competent I. Civil Division of the constitutional conflict has thereby quite appreciated: On one side stands the phonogram producers rights of § 85 of the Copyright Act. As expression of the above art. 14 Basic Law (GG) protected property it protects the technical, organizational and economic power that lies in the fact that someone sounds bans on a sound carrier. On the other hand argues that through art. 5 para. 3 GG guaranteed freedom of art, relied on by the one who sampling and so wants to use parts of the older title.
The Supreme Court has then justified his decision in favor of power plant so that the immediate, copy acquisition of parts of foreign sounds is inadmissible if “it an average equipped and capable music producers possible at the time of use of the external sound is to create your own sound, which is the original, when using the same musical context from the perspective of targeted traffic equivalent “. The Senate saw it as a balance between Art. 14 GG, the fundamental right to property, and in Art. 5 para. 3 protected artistic freedom. The idea was: Why should Pelham power plant performance may take easy if he can reproduce with little effort? Or, abstract: Why should anyone be allowed to intervene in other people’s property, if he is able to develop his artistic freedom otherwise?
The Constitutional Court holds that criterion for “not suitable to produce a reasonable balance between the interest in unfettered artistic development and the ownership interests of phonogram producers”. It Wear of artistic freedom are not sufficiently addressed, said vice-president of the court Ferdinand Kirchhof in Karlsruhe. The highest German judges therefore ask differently: Why should the owner can prohibit the use, if his property is otherwise not affected, in particular suffer no financial damage?
Background of this consideration might be that is fetched from the Constitutional Court opinions indicate that the record companies no financial losses caused by the sampling, may not even have a positive effect occurs – so refers about the Association for Protection of Intellectual Property ( GRUR). in a written opinion during the procedure in similar studies in the United States and UK Then, as the conclusion of the Constitutional Court, it complicates the artistic freedom unnecessarily to require the sample ends, recreating the piece itself.
What now?
At the decision of the BGH was kindled much criticism. It was about that idea, an assumption is admissible only if a replay was not practicable, lead to the fact that just made particularly complex pieces can be accepted – preposterous! It was said that the laity would Sampling hardly be possible in future, as the BGH indeed an “average music producers” abstelle and this far more than could a layman – intolerable!
These criticisms has managed the Constitutional Court out of the way. It has this artistic freedom given more weight and thus the opportunities for lay extended again, which indeed – platforms like YouTube and apps like GarageBand thank -zunehmend participate in the creation of content.
However, the Karlsruhe judges suggest other limitations that new problems are posing. So they put on the fact that the author of the older piece will not cause damage. When economic disadvantages threaten that turn the tide again, but is open; the Constitutional Court finds the legislator prey specifically to provide a recovery obligation for commercial success of the younger part. The clear rejection of the Constitutional Court to the opinion of the BGH, already “smallest Tonfetzen” were protected, also another question moves back to the center: How small is small?
The Supreme Court of the matter will therefore have to re-take, and who must observe the assessment of the Constitutional Court. After all these years could be him hardly blame if he chooses now one proposed by the Constitutional Court and voices from the literature way he could pass on the matter due to the European legal implications and the progressive harmonization of copyright once to the European Court.
Kraftwerk and Pelham will be busy with the matter probably still a few years. Thanks to them, not due only to their music, but also that they tirelessly offer the highest courts occasion, copyright further with regard to digitization and today’s realities a piece. Art serves no purpose, but it helps anyway.
Georg Lecheler is a lawyer and partner of the firm Oppenhoffallee & amp; Partner. He specializes in copyright and industrial property.
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