"Make the Music Flow" - Metall auf Metall and the Future Copyright

Dario Henri Haux

The broad variety of music that exists today has been shaped by different sound artists, musicians, and composers over the past centuries. These artists have influenced their peers and inspired each other. In the digital age, it is not only musicians but a plethora of "Produsers" who use, share, study and modify different forms of digital content. This results in legal issues, especially in the field of copyright law. Although some musicians have shown a great willingness to promote the advancement of music for free, many take free use for granted. This leads to an increased number of lawsuits in this field and challenges various basic assumptions of copyright law.

In analyzing possible future developments in this field, I will shortly examine the Metall auf Metall decision. The case is based on a legal dispute over a two-second excerpt, used by German hip-hop producer Moses Pelham in 1997 without permission from the world-famous band, Kraftwerk. Pelham had repeated the sequence, 5% slower than the original, in a so-called loop. In 2004, Kraftwerk filed a successful lawsuit against him which made it up to the Federal Supreme Court (BGH). In legal terms, the rights of the phonogram producers under § 85 I of the German Copyright Law (UrhG) and the rights of free use under § 24 I UrhG are opposed.
Pelham appealed the decision to the Federal Constitutional Court, emphasizing his rights under Article 5 (3) of the German Constitution, guaranteeing artistic freedom. This was opposed by the (intellectual) property rights of Kraftwerk under Article 14 of the Constitution. The court ruled[1] that in this specific case artistic freedom prevails and justified the use of the sequence inter alia, stressing the importance of "free musical development" which is guaranteed by copyright. Furthermore, it underlined, that constitutional norms in this case had to be interpreted in the "light of the arts.”     

On July 29, 2019, this decision was confirmed by the European Court of Justice.[2] In general, even the use of a short musical sequence is already a reproduction of a song. Yet, according to the Court, in the case of music sampling this does not apply if the sequence is modified and inserted into a new work.. This ruling differs to a high extent from the previous assessment of the EU general advocate, who had referred to the possibility of licensing before sampling.

As this case exemplifies, the law struggles with new practices and methods in the digital age. Even though the technique of music sampling goes back decades, new legal issues emerge with digital technologies, allowing composers and producers to choose from an unprecedented pool of music samples. This not only applies to music samples, but also to visual arts and science. Programs like Open Access or the MoMa allowing online access to many of their displayed works, are exemplary for new tendencies in copyright.  Producers, using samples of works in order to create new variations and songs, benefit from the great variety of preexisting content. Yet, in some cases they overrun the demarcation line that copyright is still trying to uphold.

But how can the law find a fair way of differentiating between inspiration, adaptation and infringement in a digital surrounding with works floating everywhere?

The understanding that the individual author, who is able to create works ex-nihilo, and consequently is entitled to exploit the copyrights, is increasingly being challenged. More and more legal scholars, judges, and lawmakers find strong evidence that culture is, and has always been, shaped by cooperation – texts, images and music rely on one another. Sometimes consciously, sometimes unconsciously. The Metall auf Metall decision is a good example to illustrate this new development. Courts are willing to challenge the traditional assumptions in order to not only promote the progress of science and the useful arts, but also to guarantee fundamental individual rights, such as artistic freedom.

Yet, this does not mean that everything must float free of charge in the digital sphere.  Different models exist in order to guarantee compensation, recognition and protection paired with access. As Richard Stallman famously put it "think free as in free speech, not free beer."

Let us use this bridge, build by the European Court, between a fair understanding of copyright protection and artistic freedom. The law does not have many options - it must either go with the flow or it will fall by the wayside.


[1] BVerfG, 5/31/2016 - 1 BvR 1585/13.

[2] EuGH, 7/29/2019 - C-476/17C-476/17.