Die Entscheidung des Bundesverfassungsgerichts zu »Metall auf Metall«

In its Judgment of 31 May 2016, the Senate of the Federal Constitutional Court of Germany dealt with a constitutional complaint filed against the so-called »Metall auf Metall II« decision of the German Federal Court of Justice. According to the contested decision, sampling of a two-second sound sequence constituted an interference with the right of phonogram producers of the sampled record. The Federal Constitutional Court measured the artist's freedom of creative expression against the rights of phonogram producers and came to the conclusion that in a case of an interference that only slightly limits the possibilities of exploitation of the phonogram producers, the exploitation interests of the phonogram producer may have to cede in favor of artistic dialogue. When once again deciding on the case, The Federal Court of Justice now has to ensure that the artistic freedom of sampling musicians is taken into account. The judgement contains important guidelines for the application of constitutional law in copyright matters. The Federal Constitutional Court, however, only provided a framework. Both the criteria for weighing the fundamental rights as well as the methodical approach to do so remain fairly vague. By using the sampling case as an example, this article first describes three criteria that should be taken into account when measuring the interests of artists in a digitalized environment against the interests of ancillary copyright holders. Secondly, this article analyses two possible methodical approaches for the application of artistic freedom in copyright. It is concluded that a limitation of the scope of the ancillary copyright is often a more favorable solution than the application of the free use provision.