On 31 May 2016, the German Federal Constitutional Court
(Bundesverfassungsgericht – "BVerfG") issued a
judgment in favor of a Hip-Hop artist ("Artist") who had
used a 2-second-sample of Kraftwerk's song "Metall auf
Metall" (the "Judgment"). The BVerfG held that the
use of samples for artistic purposes is protected by the artistic
freedom and, at the case at hand, shall prevail over the phonogram
The BVerfG annulled an earlier decision of the Federal Supreme
Court ("FSC"; Bundesgerichtshof – BGH). In
particular, the BVerfG held that the FSC had not adequately
balanced the rights of the phonogram producers on the one hand, and
the artistic freedom of the Artist, which is protected under
Article 5(3) of the German Constitution, on the other hand; in the
FSC's view the Artist had infringed the phonogram
producers' rights under Section 85 of the German Copyright Act
(Urhebergesetz – UrhG). Further, the FSC was of the opinion
that the use of samples could not be legitimized by the so-called
free-use exemption under Section 24 UrhG. Consequently, the FSC
held that even the use of the smallest tone sequences should
qualify as illegal infringement of the phonogram producers'
The BVerfG pointed out that the FSC's narrow interpretation
would not adequately take into account the broad scope of the
Artist's fundamental rights, i.e., his artistic freedom. In
particular, the BVerfG explained that a requirement to obtain a
license for use of the samples would unreasonably limit the
Artist's artistic freedom. This shall in particular be true for
the Hip-Hop culture, since the use of samples has always been a
stylistic characteristic of the Hip-Hop culture. Also, the BVerfG
explained that the Artist shall not be required to record the
samples on his own. Further, the BVerfG emphasized that sampling of
small tone sequences does only have a minor impact on the economic
interests of the relevant right-holders.
The BVerfG referred the case back to the FSC which is now asked
to issue a new decision, considering the BVerfG's deliberations
in the Judgment. Further, the BVerfG emphasized that the FSC shall
assess whether the EU Copyright Directive prevails over the
applicable provisions of the UrhG. In cases of doubts, the FSC
shall refer the case to the Court of Justice of the European Union
(CJEU) for a preliminary judgment, according to Article 267 of the
Treaty on the Functioning of the European Union.
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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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