The German Federal Supreme Court (BGH) asks CJEU for guidance to what extent EU copyright allows sampling. Now it is on the CJEU to decide the future of sample-based music.

The use of samples is a centrepiece of modern pop music, in particular hip-hop. Producers often use dozens of small parts (“samples”) from other music pieces to combine, modify and rearrange them in new songs. However, often without asking the original rights holder for permission.

The submission to the CJEU was made in the context of a complex lawsuit (Metal auf Metal) that has kept German courts busy for the last years. Subject matter of the litigation is the sampling by music producer Moses Pelham of a 2-second rhythmic sequence from German electronic music band Kraftwerk's 1977 song “Metall auf Metall” without the permission of Kraftwerk. Pelham used the sequence in his own 1997 song “Nur Mir” as a continuous background loop. Kraftwerk regarded this use as an infringement of their rights in the original sound recordings and sued Pelham.

After the German Federal Constitutional Court held that the use was covered by Pelham’s constitutional right of freedom of arts, the case is now again pending before the BGH already for the third time.

The BGH now decided to stay the court proceedings and seek guidance from the CJEU on the correct interpretation of EU law regarding sampling. In particular, the BGH asked whether a 2-second sample falls within the scope of the right of reproduction of the InfoSoc Directive. Furthermore, the BGH asked whether the German Federal Constitutional Court was allowed to base its decision on German constitutional rights at all, as the relevant provisions of the EU law are fully harmonised and thus would not leave a leeway based on national law. Therefore, the BGH argues, German courts could only assess whether fundamental and constitutional of the EU rights are infringed.

The CJEU’s decision will be eagerly anticipated as it is not only relevant for the present case at hand; furthermore it will affect the entire music industry and determine to what extent sample-based music is still possible in the future.

One thing is sure regardless of the outcome: Kraftwerk, the pioneer of modern electronic music, will again have a huge impact on the music industry.