Kunstfreiheit und geistiges Eigentum in digitalen Netzwerken. Zur Entscheidung des BVerfG v. 31. 5. 2016, 1 BvR 1585/13

The German Federal Constitutional Court has decided that the use of samples, the taking of a small portion of a sound recording« which is protected by the intellectual property right of the phonogram producer (§ 85 of the Act on Protection of Intellectual Property Rights – Urheberrechtsgesetz) may be covered by the constitutional freedom of creative expresseion (Article 5 par. 3 Grundgesetz) and justify a broader interpretation of the right to free use (§ 24 par. 1 UrhG). In this case a small sequence of two seconds was at stake. The article takes the view that the fact that remix and sampling deserve protection by the freedom of artistic impresseion does not necessarily justify a broader understanding of the right to free use, even if the artistic freedom has a procedural dimension, which is touched upon, when licensing meets with inadequate practical problems. The practical problems of licensing in particular can be solved by new flexible procedures of digitization of agreements.