In its recent Metall auf Metall judgment, the German Constitutional Court (BVerfG) ruled that the right to artistic freedom under Article 5(3) of the German Basic Law requires that the provisions of the German Copyright Act (UrhG) are interpreted in such a way as to enable certain uses of samples. However, it did not conclusively decide whether this set target must be reached through a restrictive interpretation of the exclusive right of phonogram producers or rather a wide interpretation of the applicable ‘free use’ exception. Under the EU legal framework set by the Information Society Directive 2001/29 (InfoSoc Directive) an equivalent to the German ‘free use’ does not exist. This raises the question whether a preliminary reference to the Court of Justice of the European Union (CJEU) on the compatibility of Article 5 of the directive would create a conflict between the right to artistic freedom (Article 13) and the right to the protection of intellectual property (Article 17(2)) under the Charter of Fundamental Rights of the European Union. In case of such a preliminary reference, the CJEU would have the option to reverse its jurisprudence on the interpretation of limitations and exceptions or limit the scope of the exclusive right of phonogram producers to such an extent that certain samples can be used by creative musicians without prior authorization.
