FEDERAL COURT IN THE NAME OF THE PEOPLE

JUDGMENT Directive 2001/29 / EC Art. 2 (c), Art. 4 (1), Art. 5 (3) (d), (i) and (k), Art. 8 (1); Directive 2006/115 / EC Art. 9 Para. 1 Letter b; UrhG Section 16, Section 17, Section 24, Section 51, Section 57, Section 63, Section 85 (1) Sentence 1, Cases 1 and 2, Section 96 (1) a) The acquisition of an electronic copy (sampling) ent -Audio fragments taken into a new work represents a duplication within the meaning of Article 2 (c) of Directive 2001/29 / EC and Section 85 (1) sentence 1 case 1 UrhG to be interpreted in accordance with this regulation if the audio fragment according to Listening comprehension of an average music listener in a recognizable form. b) The reproduction right of the record carrier according to § 85 Paragraph 1 Clause 1 Case 1 UrhG can only be restricted by the right of free use according to § 24 Paragraph 1 UrhG to be interpreted in accordance with Directive 2001/29 / EC, provided that The requirements of one of the exceptions or restrictions provided for in Article 5 of this Directive with regard to the rights of the record carrier from Article 2 (c) of this Directive are met. c) The German legislature hasin Article 5 (3) (k) of Directive 2001/29 / EC to not made use of the option providedprovide for an independent barrier regulation for the use of works or other subject matter for the purpose of pastiches. d) The content of the exploitation rights provided for in Directives 2001/29 / EC and 2006/115 / EC also determines the modalities of action to be prohibited in the event of their violation. If the reproduction right provided for in Art. 2 of Directive 2001/29 / EC and Section 85 (1) Sentence 1 Case 1 UrhG is violated, which in any way gives the holder the modalities of action of direct or indirect, temporary or permanent and in any form wholly or partly subject to duplication, this protection may not be extended to the application of Section 96 (1) UrhG in the area of modalities of action, the other exploitation rights (in the event of a dispute: the right of distribution according to Art. 9 para 1 letter b of Directive 2006/115 / EC). e) If the Federal Constitutional Court, in the context of the decision on a constitutional complaint, overturns a previous appeal judgment in addition to revision judgments without restricting the nullifying effect of this pronouncement, the annulment also extends to the factual findings made in this appeal judgment, to which therefore cannot be used in the reopened revision procedure.

BGH, judgment of April 30, 2020 - I ZR 115/16 - Hamburg Higher Regional Court Hamburgappealed Hamburg. The 1st Civil Senate of the Federal Court of Justiceto the hearing on January 9, 2020 by the presiding judge, Prof. Dr. Koch, the judge Dr. Löffler, the judge Dr. Schwonke, the judge Feddersen and the judge Dr. Schmaltz recognized for right:

The judgment of the Hanseatic Higher Regional Court Hamburg - 5th Civil Senate - of June 7, 2006 is overturned on the defendant's appeal and the matter is referred back to the court of appeal for a new hearing and decision, also regarding the costs of the appeal .

Right-wing

facts. The plaintiffs are members of the music group "Kraftwerk". In 1977 she released a sound carrier on which the piece of music "metal on metal" is located. Defendants 2 and 3 are the composers of the title "Nur mir", which Defendant 1 recorded with singer Sabrina Setlur on recordings released in 1997. The plaintiffs allege that the defendants electronically copied ("sampled") about two seconds of a rhythm sequence from the title "metal on metal" and backed up the title "only me" in continuous repetition whether they would have been able to import the rhythm sequence you have taken over. They believe that the defendants have thereby violated their ancillary copyright as a record carrier. In the alternative, they rely on their ancillary copyright as a performing artist, further alternatively on the violation of the copyright of plaintiff 1 to the music work and extremely alternatively on ancillary protection under ancillary competition law. The plaintiffs have made a claim against the defendants to produce and / or have sound recordings with the recording "Only me" produced, offered and / or offered and / or otherwise placed on the market and / or put into circulation To bring traffic. They also asked for the defendant's obligation to pay damages, information and the release of the recordings for the purpose of destruction. The district court upheld the lawsuit (LG Hamburg, judgment of October 8, 2004 - 308 O 90/99, juris and BeckRS 2013, 07726). The defendant's appeal has remained unsuccessful (OLG Hamburg, GRUR-RR 2007, 3). Following the revision of the defendant, the Senate overturned the appeal judgment and referred the matter back to the appeal court for a new hearing and

decision (judgment of November 20, 2008 - I ZR 112/06, GRUR 2009, 403 = WRP 2009, 308 - Metall on metal I). In the reopened appeal proceedings, the Court of Appeals again rejected the defendant's appeal (OLG Hamburg, GRUR-RR 2011, 396). The Senate rejected the defendant's appeal (judgment of 13 December 2012 - I ZR 182/11, GRUR 2013, 614 = WRP 2013, 804 metal on metal II). The Federal Constitutional Court overturned both previous judgments of the Senate and the second appeal and referred the matter back to the Federal Court of Justice (BVerfGE 142, 74). The defendants continue to pursue their motion to dismiss the application in the renewed appeal procedure. The plaintiffs request that the defendant's appeal be dismissed. By decision of June 1, 2017, the Senate submitted the following questions to the Court of Justice of the European Union for a preliminary ruling (GRUR 2017, 895 = WRP 2017, 1114 - metal on metal III):

1. There is an interference with the exclusive right of the record carrier to reproduce his sound carrier from Article 2 letter c of Directive 2001/29 / EC on the harmonization of certain aspects of copyright and related rights in the information society, if the smallest sound fragments are removed from his sound carrier and transferred to another sound carrier ? 2. Is a sound carrier containing the smallest fragments of sound transmitted by another sound carrier, within the meaning of Article 9 (1) (b) of Directive 2006/115 / EC on rental right and lending right as well as certain rights related to copyright Intellectual property rights in the area of intellectual property for a copy of the other sound carrier? 3. Can the Member States provide for a provision that - like the provision of Section 24 (1) UrhG - clarifies that the scope of protection of the exclusive right of the record carrier to reproduce (Article 2 (c) of Directive 2001/29 / EC ) and distribution (Art. 9 (1) (b) of Directive 2006/115 / EC) of his recordings is intrinsically restricted in such a way that an independent work that has been created in the free use of his recordings without his consent can be used? 4. Is a work or other protected object within the meaning of Article 5 (3) (d) of Directive 2001/29 / EC used for citation purposes if it is not apparent that a third-party work or other foreign protected object is being used? 5. Let the provisions of Union law on the reproduction and distribution right of the record carrier (Article 2 (c) of Directive 2001/29 / EC and Article 9 (1) (b) of Directive 2006/115 / EC) and the exceptions or restrictions of these rights (Art. 5 Para. 2 and 3 of Directive 2001/29 / EC and Art. 10 Para. 2 Sentence 1 of Directive 2006/115 / EC) scope for implementation in national law?

6. How are the scope of protection of the exclusive right of the record carrier for reproduction (Article 2 (c) of Directive 2001/29 / EC) and distribution (Article 9 (1) (b) of Directive 2006) / 115 / EG) of his recordings and the scope of the exceptions or restrictions of these rights (Art. 5 Para. 2 and 3 of Directive 2001/29 / EG and Art. 10 Para. 2 Sentence 1 of Directive 2006/115 / EG) To take fundamental rights of the EU Charter of Fundamental Rights into account?

The Court of Justice of the European Union answered these questions as follows (ECJ, judgment of 29 July 2019 - C-476/17, GRUR 2019, 929 = WRP 2019, 1156 - Pelham and others):

1. Art. 2 lit. c of Directive 2001/29 / EC, taking into account the Charter of Fundamental Rights of the European Union, is to be interpreted in such a way that the exclusive right of the record manufacturer from this provision to allow or prohibit the reproduction of his record allows him to oppose that a third party uses an - even very brief - audio fragment of his sound carrier to insert it into another sound carrier, unless this fragment is inserted into the other sound carrier in a modified form that is not recognizable when listening becomes. 2. Article 9 (1) (b) of Directive 2006/115 / EC is to be interpreted as meaning that a sound carrier containing fragments of music transmitted from another sound carrier is not a "copy" of that other sound. acts within the meaning of this regulation, since it does not take over all or a substantial part of the sound carrier. 3. A Member State may not, in its national law, provide for an exception or restriction with regard to the law of the record manufacturer from Article 2 (c) of Directive 2001/29, which is not provided for in Article 5 of that directive. 4. Article 5 (3) (d) of Directive 2001/29 is to be interpreted as meaning that the term "citations" does not include a situation in this provision in which the quoted work cannot be recognized. 5. Article 2 (c) of Directive 2001/29 must be interpreted to mean that it constitutes a measure to fully harmonize the substantive content of the law governed by it.

decision Reasons for theA. The Court of Appeals assumed that the defendants were obliged to defend the plaintiffs to refrain from doing so, to pay damages, to provide information and to release the sound recordings for the purpose of destruction, because they defended the rights of the plaintiffs as sound recordings producers to the recording tall ". The plaintiffs are the record producers of this recording because they had the relevant organizational responsibility for their production. According to the result of the evidence, bars 19 and 20 of the recording "Metal on Metal" were taken from the drums sample, which was consistently underlaid in the two recordings of the title "Nur mir", albeit in a metric shift (beginning at beat 3). After hearing both titles several times,

the Senate was able to determine that this rhythmic structure in the song "Nur mir" was still clearly perceptible in its characteristic form. B. The revision is successful. With the justification given by the court of appeal, the claims asserted by the plaintiffs for injunctive relief, determination of the obligation to pay compensation, provision of information and release of the sound recordings for the purpose of destruction in relation to the modality of action of the production cannot be granted (see I). The same applies to the claims pursued by the plaintiffs for injunctive relief, determination of the obligation to pay compensation, information and the release of the sound recordings for the purpose of destruction in relation to the modality of the placing on the market (see II). I. With the justification given by the Court of Appeal, the claims asserted by the plaintiffs for injunctive relief, determination of the obligation to pay damages, information and surrender of the sound recordings for the purpose of destruction in relation to the modality of action of the production due to a violation of the reproduction right of the plaintiffs as the sound record producer according to section 85 (1) sentence 1 case 1 UrhG. In this regard, it is with regard to the fact that Directive 2001/29 / EC, which in Article 2 (2) gives the reproduction right for sound record manufacturers with regard to their sound recordings and in Article 5 (2) and (3) exceptions or restrictions with regard to this right regulates, according to Art. 10, applicable to acts of use from December 22, 2002, between the production of sound recordings with the recording "Nur mir" before December 22, 2002 (see BI 1) and from the aforementioned date (see BI 2) to be distinguished. 1. The reason given by the Court of Appeal does not justify the claims asserted by the plaintiffs because of violation of the reproduction right in accordance with § 85 Paragraph 1 Sentence 1 Case 1 UrhG with regard to acts of manufacture committed by the defendant before December 22, 2002 award. a) According to § 85 Paragraph 1 Clause 1 Case 1 UrhG, the manufacturer of a sound carrier has the exclusive right to reproduce the sound carrier. The right to reproduce is, according to Section 16 (1) UrhG, the right to produce copies of the work, regardless of whether it is temporary or permanent, in what procedure and in what number. Reproduction in accordance with section 16 (2) UrhG is also the transfer of the work to devices for the repeated reproduction of image and sound sequences (image or sound carriers), regardless of whether it is a recording of a reproduction of the work on an image or orcarrier or the transfer of the work from one image or sound carrier to another. b) In its first two revision judgments - also with a view to sound recordings made before December 22, 2002 with the recording "Nur mir" - the Senate assumed an interference with the

exclusive protection protected by Section 85 (1) sentence 1 Case 1 UrhG The rights of the record carrier are also present if the smallest bits of sound are removed from a record. The defendants could not successfully claim the right of free use according to Section 24 (1) UrhG. If a third-party sound carrier is used, the regulation is basically applicable accordingly (BGH, GRUR 2009, 403 paragraph 21 - metal on metal I, mwN; GRUR 2013, 614 paragraph 14 - metal on metal II). A corresponding application is ruled out, however, if - as in the case of a dispute - it is possible to record the tone sequence recorded on the sound carrier yourself (BGH, GRUR 2009, 403 paragraph 23 - metal on metal I; GRUR 2013, 614 paragraph 13 to 24 - metal on metal II). c) According to the ruling of the Federal Constitutional Court on May 31, 2016, in the event of an autonomous application of Section 85 (1) sentence 1 case 1 UrhG in the event of a dispute that is not shaped by Union law, the assumption of an infringement of the reproduction right of the plaintiffs as the record carrier with a view to the other cases impending violation of the fundamental right to freedom of art pursuant to Article 5 (3) GG (BVerfGE 142, 74 paras 88 to 108). The Federal Constitutional Court has given the Senate the fundamental right under Article 5 (3) GG when making a new decision by restricting the interpretation of Section 85 (1) sentence 1 UrhG, by applying Section 24 (1) UrhG accordingly or by means of the recourse to the right to quote according to § 51 UrhG (BVerfGE 142, 74 margin no. 110). In view of the fact that, in the opinion of the Federal Constitutional Court, it would not take sufficient account of the artistic creative processthat could be replayed asif the admissibility of the use of samples of a sound carrierequivalent were generally made dependent on the permission of the sound carrier manufacturer (cf.BVerfGE 142, 74 para. 91 to 108), the Senate does not adhere to its view that a corresponding application of Section 24 (1) UrhG is ruled out if it is possible to record the tone sequence recorded on the sound carrier itself (BGH, GRUR 2009, 403 marg. 23 - metal on metal I; GRUR 2013, 614 paragraphs 13 to 24 - metal on metal II). d) Whether the defendants can successfully rely on the right of free use pursuant to Section 24 (1) UrhG due to acts of reproduction before December 22, 2002 cannot be assessed on the basis of the observable findings of the Court of Appeal. The first appeal judgment of 7 June 2006 in the present case does not make any statements regarding the requirements of an analogous application of § 24 UrhG - as it was at that time. For legal reasons, the Senate is prevented from using the relevant findings in the second appellate judgment of December 13, 2012. In addition to the two revision judgments in the present case, the Federal Constitutional Court also overturned the second appeal judgment of December 13, 2012. If the Federal Constitutional Court overrides the contested decision in the context of the decision on a constitutional complaint and refers the matter back to a competent court, the contested decision of the specialist court is resolved retrospectively and the main

proceedings are prior to their adoption set back unless the cancellation is limited in factual, formal or temporal respects (see BVerfGE 89, 381, 393 to 395 [juris Rn. 38, 41]; Benda / Klein, constitutional procedural law, 3rd edition, § 19 No. 616; Barczak / Nettersheim, employee comment on the Federal Constitutional Court Act, § 95 No. 30). In the event of a dispute, the Federal Constitutional Court has issued no restriction on the effectiveness of the reversals of the judgment. After that, the annulment also extends to the actual findings made in the annulled second appeal judgment. In the absence of conclusions that can be taken into account, it can therefore be assumed in favor of the revision that the requirements of Section 24 (1) UrhG are met. The conviction cannot exist afterwards. 2. With the justification given by the Court of Appeal, the claims asserted by the plaintiffs because of the acts of manufacture by the defendant after December 22, 2002 can also violate the right of reproduction in accordance with Section 85 (1) sentence 1 Case 1 UrhG not be awarded. a) With regard to Directive 2001/29 / EC, the right of the sound carrier manufacturer to reproduce the sound carrier, regulated in § 85 Paragraph 1 Clause 1 Case 1 UrhG, applies to Directive 2001/29 / EC, which according to Art. 10 Par. December 2002 performed acts of use is applicable to interpret in accordance with the guidelines. According to Article 2 (c) of Directive 2001/29 / EC, the Member States have the exclusive right for the recorders to make their recordings directly or indirectly, temporarily or permanently, in any way and in any form wholly or in any form partially to allow or to ban. b) The provision of section 85 (1) sentence 1 case 1 UrhG is also to be interpreted and applied in the light of the fundamental rights of the EU Charter of Fundamental Rights affected in the event of a dispute. According to the case law of the Federal Constitutional Court, domestic legal provisions that implement a directive of the European Union into German law should in principle not be measured by the fundamental rights of the Basic Law, but only by Union law and thus also by the fundamental rights guaranteed by Union law, insofar as the directiveno room for implementation to the member statesleaves, but rather sets mandatory requirements (BVerfGE 142, 74 para. 115; BVerfG, GRUR 2020, 88 para. 42 to 46 = WRP 2020, 57 right to be forgotten II). Article 2 (c) of Directive 2001/29 / EC constitutes a measure to fully harmonize the substantive content of the law it regulates (ECJ, GRUR 2019, 929 paragraph 85 - Pelham and others), which leaves no room for implementation for the Member States, but makes mandatory specifications. c) On the submission of the Senate, the Court of Justice of the European Union has ruled that the duplication of an audio fragment of an audio recording by a user, even a very short one, is in

principle a partial reproduction within the meaning of Article 2 (c) of the Directive 2001/29 / EG is to be seen and such a reproduction is therefore subject to the exclusive right of the record carrier from this provision. This interpretation is in line with the aim of the Directive to achieve a high level of protection for copyright and related rights (see recitals 4, 9 and 10) and to protect the substantial investments that record companies have to make in order to be able to offer products such as recordings ( see recital 10). Reproduction within the meaning of Art. 2 letter c of the Directive 2001/29 / EC does not exist, however, if a user removes an audio fragment from a sound carrier in order to exercise his freedom of art, in order to have it modified and unrecognizable when listening to be used in a new plant (ECJ, GRUR 2019, 929 paragraphs 29 to 31 - Pelham and others). According to recitals 3 and 31 of Directive 2001/29 / EC, the harmonization brought about by this Directive is intended, particularly against the background of electronic media, to strike an appropriate balance between the interests of holders of copyright and related rights to the protection of their now in Art. 17 (2) of the EU Charter of Fundamental Rights enshrines the right to intellectual property on the one hand and the protection of the interests and fundamental rights of users of objects of protection and the general intereston the other. However, the right under Article 17 (2) of the EU Charter of Fundamental Rights is not guaranteed without restrictions, but must be weighed against the other fundamental rights. Thus, the freedom of art guaranteed by Art. 13 of the EU Charter of Fundamental Rights makes it possible to participate in the public exchange of cultural, political and social information and ideas of all kinds, because it belongs to the freedom of expression that is provided by Art. 11 of the EU - Charter of Fundamental Rights and Art. 10 Para. 1 of the European Convention for the Protection of Human Rights is protected (ECJ, GRUR 2019, 929 paragraphs 32 to 34 - Pelham and others). The technique of electronically copying audio fragments (sampling), in which a user removes an audio fragment from a sound carrier - usually with the help of electronic devices - and uses it to create a new work, is an artistic form of expression that is defined by Art 13 of the EU Charter of Fundamental Rights protected freedom of art falls. In exercising this freedom, when creating a new work, the user of an audio fragment can change the fragment taken from the sound carrier so that it is not recognizable in the new work. The assumption that an audio fragment taken from a sound carrier for your own artistic work and used in a new work in a modified form that cannot be recognized when you listen to it, is a reproduction of this sound carrier within the meaning of Article 2 (c) of Directive 2001/29 / EG does not only contradict the meaning of this term according to common usage, but also disregarded the need for an appropriate balance between the interests of the owners of copyright and related rights and the interests of the users as well as the general interest. Such an interpretation would allow record companies in particular, to fight back against the fact that a third party for the purpose of artistic creation one - even very short - takes audio fragment from his recordings, although such a withdrawal does not obstruct his way

to a satisfactory return on to achieve its investments (ECJ, GRUR 2019, 929 paragraphs 35 to 38 - Pelham and others). d) According to these standards, the removal of two bars of a rhythm sequence from the recordings of the plaintiffs and their transfer to the recordings of the defendants constitutes a reproduction within the meaning of Article 2 (c) of Directive 2001/29 / EC and thus also of Section 85 Para. 1 Sentence 1 Case 1 UrhG. Aa) When examining the question whether an audio fragment taken from a sound carrier is used in a new work in a modified form that is unrecognizable when listening, the listening comprehension is an average Turn off the music listener (see Apel, MMR 2019, 601, 602; Leistner, GRUR 2019, 1008, 1010; Wagner, MMR 2019, 727, 729). The consideration of this audience corresponds to the goal pursued with the introduction of the criterion of the "changed and unrecognizable form when listening", in the case of the taking over of audio fragments within the framework of artistic creation, the assumption of a reproduction to the detriment of the economic interests of the record carrier knot. According to the case law of the Court of Justice of the European Union, it follows from a consideration of the freedom of art (Art. 13 EU Charter of Fundamental Rights) and the guarantee of intellectual property (Art. 17 Para. 2 EU Charter of Fundamental Rights) that a there is no sufficient impairment of the interests of the record carrier if the audio fragment is adopted in a modified form that cannot be recognized when listening (see ECJ, GRUR 2019, 929 paragraph 37 f. - Pelham and others). According to this understanding, the interests of the record carrier are in any case sufficiently affected if an audio fragment is adopted in a form that is recognizable when listening. bb) According to the findings of the Court of Appeal in the first appeal judgment, the drum sample, which is consistently underlaid in the two recordings of the title "Nur mir", was taken from bars 19 and 20 of the recording "Metal auf Metall", albeit in a metric shift ( Start on beat 3). After hearing both titles several times, the Court of Appeals found that this rhythmic structure was clearly perceptible in its characteristic form in the song "Nur mir". The appeal does not bring forward legal attacks against these findings by the trial court; Legal errors are also not apparent in this respect. The defendants have therefore adopted the rhythm sequence in their new recordings in a slightly changed but recognizable form on hearing. This acquisition is therefore a reproduction within the meaning of Article 2 (c) of Directive 2001/29 / EC. e) Due to acts of reproduction from December 22, 2002, the defendants cannot successfully rely on the fact that the right of free use according to Section 24 (1) UrhG affects the scope of protection of the exclusive right of the record carrier to reproduce its record in the manner (

immanent) limits that an independent work that has been created in the free use of its sound carrier may be exploited without his consent, regardless of whether the conditions are one of the requirements of Art. 5 of Directive 2001/29 / EC in relation to the law of Sound carrier manufacturer exceptions or restrictions provided for in Article 2 letter c of this Directive are met. aa) According to Section 24 (1) UrhG, an independent work that was created in the free use of another's work may be published and used without the consent of the author of the work used. (1) There is no explicit equivalent in the copyright law of the European Union for this provision. Section 24 (1) UrhG does not count among thein copyright restrictions set outPart 1 Section 6 of the Copyright Act (Sections 44a to 63a UrhG). The right of free use, which has always been recognized in national copyright law (cf. § 13 LUG and § 16 KUG), rather denotes a limitation of its scope of protection inherent in copyright law. This limitation is based on the knowledge that cultural creation is not conceivable without building on previous work by other authors (cf. Loewenheim in Schricker / Loewenheim, copyright, 6th edition, § 24 UrhG margin no. 2); Its purpose is to create space for a creative examination of existing works and thus to enable cultural development (see BGH, GRUR 2009, 403 paragraph 21 - metal on metal I; GRUR 2017, 888 paragraph. 22 - metal on metal III). (2) The provision of Section 24 (1) UrhG is not directly applicable in the case of the use of a third-party sound carrier because, according to its wording, it requires the use of another's work; in this case, however, it is generally applicable accordingly (BGH, GRUR 2009, 403 paragraph 21 - metal on metal I, mwN; GRUR 2013, 614 paragraph 14 - metal on metal II; GRUR 2017, 888 paragraph 24 - metal on Metal III). bb) The Court of Justice of the European Union has ruled on submission by the Senate that a member state may not provide for an exception or restriction in its national law with regard to the law of the record carrier from Article 2 letter c of Directive 2001/29 / EC which is not provided for in Art. 5 of this guideline (ECJ, GRUR 2019, 929 paragraphs 56 to 65 - Pelham and others). Article 5 of Directive 2001/29 / EC does not provide a (general) exception or restriction with regard to the exploitation rights of rightholders from Articles 2 to 4 of Directive 2001/29 / EC in the event that an independent work is freely available of the work or the performance of a right holder. According to this, it is no longer permissible in such a case, regardless of whether the conditions were one of thein Article 5 of Directive exceptions or restrictions provided for2001/29 / EC with regard to the rights of exploitation of rightholders from Articles 2 to 4 of this Directive -gen to assume that the scope of protection of a right of exploitation is (immanently) restricted by § 24 Para. 1 UrhG in such a way that an independent work that has been created in the free use of the work or the performance of a legal owner without his consent may be used.

However, this can also be seen as an inherent limitation of the scope of protection of the record carrier's right of reproduction that Article 2 (c) of Directive 2001/29 / EC does not allow the record carrier to do so, according to the case law of the Court of Justice of the European Union to prevent a third party from inserting an audio fragment of its sound carrier into another sound carrier in a modified form that is not recognizable when listening. However, this restriction already results from an interpretation of Article 2 (c) of Directive 2001/29 / EC taking into account the EU Charter of Fundamental Rights. f) The defendants also cannot successfully rely on a barrier regulation. According to Section 85 (4) of the Copyright Act, the restrictions on copyright set out in Part 1, Section 6 of the Copyright Act are applicable accordingly if a third-party record is used. In the event of a dispute, the limits to the right to quote (Section 51 Clause 1 and 2 No. 3 UrhG; Art. 5 Section 3 Letter d of Directive 2001/29 / EC), as well as the barriers for the use of immaterial accessories (Section 57 UrhG; Article 5 (3) (i) of Directive 2001/29 / EC) or for the purpose of caricatures and parodies (Section 24 (1) UrhG; Article 5 (3) (k) of Directive 2001/29 / EG) into consideration. aa) Insofar as the German legislature has made use of the barrier provisions of the Copyright Act that come into consideration in the event of a dispute, from the option provided in Art. 5 Para. 2 and 3 of Directive 2001/29 / EC, exceptions and restrictions with regard to the speech in question To provide for the existing rights of exploitation of the right holders, these barrier regulations are to be interpreted in accordance with the guidelines. The following principles apply to this interpretation: (1) The scope of the Member States' scope for implementing a special exception or restriction specified in Article 5 (2) or (3) of Directive 2001/29 / EC is limited to to judge the case law of the Court of Justice of the European Union in individual cases, in particular in accordance with the wording of this provision (ECJ, judgment of 29 July 2019 - C-516/17, GRUR 2019, 940 paragraph 25 = WRP 2019, 1162 - Spiegel Online; judgment of 29 July 2019 C469 / 17, GRUR 2019, 934 paragraph 40 = WRP 2019, 1170 Funke Medien). This scope is limited in several respects: First, the member states may only provide in their legal provisions for an exception or limitation provided for in Art. 5 Para. 2 and 3 of Directive 2001/29 / EC insofar as they meet all the requirements of this provision adhere; Member States are also obliged to observe the general principles of Union law, which include the principle of proportionality, according to which the measures adopted must be suitable for achieving the aim pursued and must not go beyond what is necessary for this ( ECJ, GRUR 2019, 940 paragraphs 31 to 34 - Spie-gel Online; GRUR 2019, 934 paragraphs 46 to 49 Funke Medien).

Secondly, the Member States must not use their scope to implement the exemptions and restrictions provided for in Article 5 (2) and (3) of Directive 2001/29 / EC in a way that achieves the objectives of Directive 2001 / 29 / EC, which, according to recitals 1 and 9, consist of achieving a high level of protection for authors and the smooth functioning of the internal market; at the same time, the Member States must also maintain the practical effectiveness of the exceptions and restrictions and observe their objectives in order to ensure an appropriate balance of rights and interests between the various categories of rightholders and between, as explained in recital 31 of this Directive the various categories of rightholders and users of protected objects (ECJ, GRUR 2019, 940 paragraph 35 f. - Spiegel Online; GRUR 2019, 934 paragraph 50 f. Funke Medien). Thirdly, the scope of the Member States in implementing the exceptions and restrictions mentioned in Article 5 (2) and (3) of Directive 2001/29 / EC is limited by Article 5 (5) of Directive 2001/29 / EC, which sol - makes exceptions or restrictions dependent on a threefold requirement, namely that they are only used in certain special cases, that they do not impair the normal exploitation of the work and that they do not unduly undermine the legitimate interests of the right holder (ECJ, GRUR 2019, 940 paragraph 37 - Spiegel Online; GRUR 2019, 934 paragraph 52 Funke Medien). Fourthly, the Member States are obliged to rely on an interpretation of these provisions in order to implement the exceptions and restrictions mentioned in Article 5 (2) and (3) of Directive 2001/29 / EC, which allows to ensure an appropriate balance between the various fundamental rights protected by the legal order of the Union (ECJ, GRUR 2019, 940 paragraph 38 - Spiegel Online; GRUR 2019, 934 paragraph 53 Funke Medien). (2) For the appropriate balance between the various fundamental rights, which must be ensured when interpreting the barriers of the Copyright Act created to implement the exceptions and restrictions mentioned in Art. 5 Para. 2 and 3 of Directive 2001/29 / EC, the following shall apply: Case law of the Court of Justice of the European Union and the Federal Constitutional Court, the following principles: According to the case law of the Court of Justice of the European Union, the level of fundamental protection provided for in the EU Charter of Fundamental Rights must be achieved independently of the scope for implementation of the Member States when implementing a directive by the member states. To the extent that national law is not completely determined by Union law, national authorities and courts are still free to apply national protection standards for fundamental rights, provided that this application does not protect the level of protection of the EU Charter of Fundamental Rights, as recommended by the Court of Justice is interpreted, the

priority, unity and effectiveness of EU law are still affected (ECJ, GRUR 2019, 940 paragraphs 19 to 23 - Spiegel Online; GRUR 2019, 934 paragraphs 30 to 33 Funke Medien). According to the jurisprudence of the Federal Constitutional Court, the question of whether the fundamental rights of the Basic Law or the fundamental rights of the EU Charter of Fundamental Rights are decisive in the interpretation and application of national law determined by Union law, depends in principle on whether this right is fully harmonized under Union law (then are generally not the fundamental rights of the Basic Law, but solely the fundamental Union rights) or whether this right is not fully determined in Union law (then primarily the yardstick of the fundamental rights of the Basic Law applies). The primary application of the fundamental rights of the Basic Law is based on the assumption that Union law, where it leaves the Member States with scope for professional design, does not regularly aim at uniformity of the protection of fundamental rights, but rather allows for a diversity of fundamental rights. The assumption then applies that the level of protection of the EU Charter of Fundamental Rights is also guaranteed by the application of the fundamental rights of the Basic Law. An exception to the assumption of fundamental rights diversity in open-ended specialist law or a refutation of the presumption of the guarantee of the level of protection of the EU Charter of Fundamental Rights can only be considered if there are concrete and sufficient indications for this (see BVerfG, GRUR 2020, 74 marginal no. 71 = WRP 2020, 39 - Right to be forgotten I). Insofar as it is determined in individual cases that the application of the various fundamental rights does not lead to different results in a specific context, the specialist courts - in accordance with general procedural law - are not prevented from leaving difficult questions of delimitation as to the scope of the standardization under EU law (BVerfG, GRUR 2020, 88 para. 81 - right to be forgotten II). (3) The fundamental rights of the Basic Law and the fundamental rights of the EU Charter of Fundamental Rights, apart from the exceptions and restrictions provided for in Art. 5 Para. 2 and 3 of Directive 2001/29 / EC, cannot justify a deviation from the exclusive rights of rightholders (cf. ECJ, GRUR 2019, 940 paragraph 49 - Spiegel Online; GRUR 2019, 934 paragraph 64 Funke Medien). A general balancing of interests outside of the copyright exploitation powers and barrier provisions is out of the question. In view of the explicit provisions of the directives, a weighing of fundamental rights detached from the interpretation and application of the copyright provisions by the courts would encroach on the relationship between copyright law and barrier regulation already regulated by the guideline within the scope of its freedom of design (for German copyright law see BVerfG, GRUR 2012, 389 marg. 14 mwN; BGH, GRUR 2017, 895 marg. 51 - metal on metal III, mwN).

bb) The prerequisites for a quote within the meaning of Section 51 Clause 1 and 2 No. 3 UrhG are not met. (1) According to § 51 sentence 1 UrhG, the reproduction of a published work for the purpose of the quotation is permitted, provided that the scope of the use is justified by the special purpose. This is permissible in accordance with Section 51 Clause 2 No. 3 UrhG, in particular if individual parts of a published work of music are cited in an independent work of music. If a work or part of a work is reproduced in these cases, the source must always be clearly stated in accordance with section 63 (1) sentence 1 UrhG. Pursuant to section 63 (1) sentence 3 of the Copyright Act, the obligation to cite the source ceases to apply if the source is not known on the workpiece or in the reproduction used, nor is it otherwise known to the person authorized to reproduce it. (2) The provisions of Sections 51 and 63 UrhG serve to implement Article 5 (3) (d) of Directive 2001/29 / EC and are therefore to be interpreted in accordance with the directive. According to this provision, the member states may provide for exceptions and restrictions for quotations such as criticism or reviews with regard to the reproduction right provided for in Article 2 of Directive 2001/29 / EC, provided that they relate to a work or other subject matter that has already been made legally accessible to the public, provided that - except in cases where this proves impossible - the source, including the name of the author, is given and provided that its use is in accordance with decent customs and the extent to which it is determined by the particular Purpose is justified. (3) Freedom of quotations is intended to facilitate intellectual engagement with foreign works. The pursuit of a purpose of quotation within the meaning of § 51 UrhG therefore requires that the citer establishes an internal connection between a third-party work and one's own thoughts and that the citation appears as a reference or basis for discussion for independent explanations of the citation (see BGH, judgment of 30 November 2011 - I ZR 212/10, GRUR 2012, 819 paragraphs 12 and 28 = WRP 2012, 1418 - blooming landscapes; judgment of December 17, 2015 - I ZR 69/14, GRUR 2016, 368 paragraphs 25 = WRP 2016, 485 - Ex-exclusive interview, each with MwN; on Article 5 (3) (d) of Directive 2001/29 / EC see ECJ, judgment of December 1, 2011 - C-145/10, Coll. 2011, I -12533 = GRUR 2012, 166 margins 118 to 149 - Painer / Standard and others). In the case of musical quotation, the purpose of the quotation is understood further insofar as the citing of a single passage from a foreign musical work in an independent musical work can be permissible in individual cases, for example as a stylistic device of appeal or contrast, including the "homage" (cf. Schricker / Spindler in Schri-cker / Loewenheim loc. Cit. § 51 UrhG margin no. 49); However, it is also necessary in such a case that the listener can recognize the music quotation as a foreign component (see Schricker / Spindler in Schricker / Loewenheim loc. cit. § 51 UrhG paragraph 15; Schulze in Dreier / Schulze, UrhG, 6th ed., § 51

marginal 19). In the context of the right to quote, it is not a question of whether the content of the quote can be identified as such by a person who knows the original, but rather that the strangeness of the content is recognized (see Stieper, ZUM 2019, 713, 719). The Court of Justice of the European Union has confirmed this view. He stated that the essential features of a quotation are that a work or, more generally, an excerpt from a work is used by a user who is not the author to explain statements, defend an opinion or an intellectual one To enable discussion between the work and the statements of the user. The user of a protected work who wanted to rely on the exception for quotations must therefore pursue the goal of interacting with this work. In particular, if the creator of a new musical work uses an audio fragment (sample) that has been taken from a sound carrier and is recognizable when listening to the new work, the use of this audio fragment can be a "quote" in the sense of the circumstances of the individual case 5 (3) (d) of Directive 2001/29 / EC, taking into account Article 13 of the EU Charter of Fundamental Rights, provided that the purpose of the use is to interact with the work from which the audio fragment was taken, and provided that the requirements of Article 5 (3) (d) of Directive 2001/29 / EC were met. However, there could be no such interaction if the work cited could not be recognized (ECJ, GRUR 2019, 929 paragraphs 70 to 73 - Pelham and others). In this regard, the Court of Justice of the European Union referred to what the Advocate General said in his Opinion, which emphasized that the legality of a quotation presupposes that the quotation has been inserted into the quoting work in such a way that it can easily be recognized as a foreign component ( Opinion of Advocate General Szpunar of 12 December 2018 in Case C-476/17, juris, paragraph 65 - Pelham and others). (4) In the event of a dispute, the requirements for a quotation are not met. The audio fragment taken over from the defendant's sound carrier is recognizable for the average listener (see paragraphs 28 to 31 above). However, there is no evidence that the listeners could assume that the rhythm sequence underpinned the piece "Only me" was taken from a foreign work or sound carrier. The defendants therefore did not use the rhythmic sequence of the musical piece "Metal on Metal", which was taken from the plaintiffs' recordings, in the sense of Article 5 (3) (d) of Directive 2001/29 / EC for the purpose of quoting them Repeatedly repeated the piece of music "Nur mir" (see also Opinion of Advocate General Szpunar dated December 12, 2018 in case C-476/17, juris para. 67 - Pelham and others: "The present case is a perfect example that it is not a form of interaction, but a form of appropriation. "). cc) The takeover of the audio fragment by the defendant is not permitted under Section 57 UrhG. (1) According to this provision, the duplication and distribution of works is permitted if they are to be regarded as insignificant additions to the actual object of the duplication or distribution.

(2) Section 57 UrhG serves to implement Article 5 (3) (i) of Directive 2001/29 / EC, which stipulates that the Member States should include the inclusion of a work or other subject matter in other material in Regarding the right of reproduction, there may be exceptions and restrictions. (3) The requirements of this barrier regulation do not exist because the defendants not only included the two-second rhythm sequence, which they took from the recordings produced by the plaintiffs, in the title "Just me" and therefore the rhythm sequence was not insignificant Attachment of the title "Nur mir" is to be seen (for the term "insignificant attachment" in the sense of § 57 UrhG see BGH, judgment of November 17, 2014 - I ZR 177/13, GRUR 2015, 667 paragraph 27 = WRP 2015, 250 - furniture catalog). According to the Court of Appeals, bars 19 and 20 of the title "Metal on Metal" are the defining part (the "nucleus") of this sound recording; this consists of its constant repetition. In the title "Nur mir" this part of the sound recording is still clearly perceptible in its characteristic form; this piece is also continuously underlaid (see BGH, GRUR 2017, 895 paragraph 37 - metal on metal III). dd) The revision invokes the barrier of caricature or parody in accordance with Section 24 (1) UrhG without success. (1) The German legislature has not created an independent barrier regulation for the use of works or other subject matter for the purpose of caricatures and parodies. However, the provision of Section 24 (1) UrhG in its interpretation by German jurisprudence constitutes a barrier regulation for such use. Thereafter, an independent work was created in the free use of another's work and may therefore be published and used without the consent of the author of the work used if the new work is so far removed from the borrowed personal traits of the older work considers that by its very nature it can be regarded as independent. This may be the case if the new work is a caricature or parody of the older work (BGH, GRUR 2017, 895 paragraph 39 - metal on metal III). (2) As far as the copyright admissibility of caricatures and parodies is concerned, the provision of Section 24 (1) UrhG serves to implement Article 5 (3) (k) of Directive 2001/29 / EC. Thereafter, the Member States may provide for exceptions or restrictions on the use of cartoons, parodies or pastiches in relation to the right of reproduction. As far as the copyright admissibility of caricatures and parodies is concerned, § 24 Paragraph 1 UrhG is therefore in accordance with the regulation of Article 5 Paragraph 3 Letter k of Directive 2001/29 / EC and the one issued on this provision Case law of the Court of Justice of the European Union (ECJ, judgment of 3 September 2014 - C-201/13, GRUR 2014, 972 = WRP 2014, 1181 - Deckmyn and Vrijheidsfonds / Vandersteen and others) to be interpreted (see BGH, judgment of 28 July 2016 - I ZR 9/15, BGHZ 211, 309 Rn. 24 - trimmed to bold; BGH, GRUR 2017, 895 Rn. 39 - metal on metal III; Ohly, GRUR 2017, 964, 968 f.).

(3) The musical piece "Nur mir" does not meet the requirements of a cartoon or parody of the musical piece "Metall auf Metall". The essential characteristics of a caricature or parody within the meaning of Article 5 (3) (k) of Directive 2001/29 / EC are, on the one hand, to remind one of an existing work, but at the same time to show discernible differences in relation to it, and on the other to show others an expression of humor or a mockery (for the parody see ECJ, GRUR 2014, 972 paragraph 33 - Deckmyn and Vrijheidsfonds / Vandersteen and others). In any case, there is no indication that the piece of music "Nur mir" is an expression of humor or a mockery (cf. BGH, GRUR 2017, 895 paragraph 40 - metal on metal III). ee) The revision claims without success that the dispute is a pastiche within the meaning of Article 5 (3) (k) of Directive 2001/29 / EC. The German legislature has not made use of the possibility of providing an independent barrier regulation for the use of works or other protective objects for the purpose of pastiches. Nor does the provision of Section 24 (1) UrhG, as interpreted by German case law, constitute a barrier regulation for the use in question in the event of a dispute. When implementing Directive 2001/29 / EC into national law, the German legislator was able to create a law with a view to the constant case law of the Federal Court of Justice that parodies and caricatures can be freely used according to Section 24 (1) UrhG express barriers. There was and is no such case law on pastiches. In principle, it is solely up to the legislator and not the courts to decide whether to make use of the possibility of implementing a barrier regulation into domestic law. g) The judgment under appeal has no validity because there are no determinations as to whether the necessary risk of inspection exists for the period from December 22, 2002 onwards. aa) There are no actual findings regarding a risk of repetition. A right to injunctive relief based on the risk of repetition and directed towards the future only exists if the contested act was infringing both under the law applicable at the time of the contested act and under the law applicable at the time of the revision decision (st. Rspr .; cf. BGH, Judgment of March 7, 2019 - I ZR 195/17, GRUR 2019, 522 paragraph 12 = WRP 2019, 749 - SAM, mwN). The Court of Appeals has not found that from December 22, 2002, sound carriers with the musical piece "Nur mir" have been reproduced and distributed; The Senate does not adhere to the opposite assumption after a new review (cf. BGH, GRUR 2017, 895 para. 14 - metal on metal III).

bb) Furthermore, the court of appeal has not made any factual findings from which a risk of first ascent could be derived. From the fact that the defendants duplicated and distributed the recordings objected to by the plaintiffs before December 22, 2002, it cannot readily be concluded that such behavior also seriously threatened after this point in time as a risk of first ascent. This applies in particular if what is to be assumed in the appeal proceedings due to the fact that the Court of Appeal cannot make any determinations that can be taken into account (see paras. 13 to 21) - the previous reproduction and distribution was lawful. The justification of the first ascent risk due to the past defendant's behavior, which only became inadmissible due to a later change in the law, can only be considered if further circumstances arise that can be expected to result in an infringement in the future (see BGH, judgment of July 24, 2014 - I ZR 221/12, GRUR 2014, 1013 paragraph 19 = WRP 2014, 1184 - original Bach flowers). In the event of a dispute, such circumstances are missing. II. With the justification given by the court of appeal, the claims pursued by the plaintiffs to cease and desist, determination of the obligation to pay compensation, provision of information and release of the sound recordings for the purpose of destruction in relation to the modality of action of placing on the market cannot be granted. There is no violation of the rights of distribution of the plaintiffs as sound record producers according to § 85 Paragraph 1 Clause 1 Case 2 UrhG (see B II 1). If, with regard to acts committed from December 22, 2002, the rights of reproduction of the plaintiffs as sound recorders according to § 85 Paragraph 1 Clause 1 Case 1 UrhG (already BI 2) have been violated, a prohibition on the modality of action of placing on the market according to § 96 (1) Copyright Act (see B II 2). 1. There is no violation of the right of distribution of the plaintiffs as sound record producers according to § 85 Paragraph 1 Clause 1 Case 2 UrhG in relation to the modality of action of placing on the market. a) According to section 85 (1) sentence 1 case 2 UrhG, the producer of a sound carrier has the exclusive right to distribute the sound carrier. According to § 17 UrhG, the right of distribution is the right to offer the original or copies of the work to the public or to put them on the market. b) Section 85 (1) sentence 1 case 2 of the Copyright Act serves the implementation of Article 9 (1) (b) of Directive 2006/115 / EC with regard to the right of distribution and must therefore be interpreted in accordance with the directive. According to this provision, the Member States provide recorders with the exclusive right in relation to their recordings to make the recordings and copies thereof available to the public by way of sale or otherwise. Article 2006 of Directive 2006/115 / EC applies to acts of use from July 1, 1994.

c) By taking two bars of a rhythmic sequence from the title "Metal on Metal" from the plaintiffs produced by the plaintiffs by sampling and adding them to the piece "Only me", they have not included in the article 9 para 1 letter b of Directive 2006/115 / EC interfered with the distribution right of the plaintiffs as a sound record producer. The Court of Justice of the European Union has ruled on submission by the Senate that a sound carrier containing music fragments transmitted from another sound carrier is not a copy of this other sound carrier within the meaning of Article 9 (1) (b) of Directive 2006/115 / EC . Although Directive 2006/115 / EC is intended to provide the record carrier with adequate protection of his intellectual property rights by being able to secure his investments in the production of recordings and, according to its second recital, serve in particular to combat piracy, because this poses a particularly serious danger to the interests of the record carrier. However, there is only a risk of such a legal impairment if all or a substantial part of the tones specified in a sound carrier are adopted. However, the protective purpose is not affected if an object that does not accept all or a substantial part of the tones specified in a sound carrier only records musical fragments - possibly in a modified form - that are transmitted by this sound carrier in order to create a new and to create an independent work (see ECJ, GRUR 2019, 929 paragraphs 44 to 47 - Pelham and others). Such a music fragment is involved in the dispute. 2. Insofar as the acts of the plaintiffs as record producers have been violated according to § 85 Paragraph 1 Clause 1 Case 1 UrhG (acts already BI 2) by acts committed from December 22, 2002, the injunction does not extend to the modalities of action Offering and placing on the market the sound carriers specified in the prohibition of the regional court. a) Pursuant to Section 96 (1) UrhG, illegally produced copies may not be distributed or used for public reproduction. b) Insofar as this regulation led to an expansion of fully harmonized exploitation rights under Union law, it is contrary to the directive and therefore inapplicable (cf.Grünberger in Schricker / Loewenheim loc. cit. 96 UrhG margin no.9; aA Schulze, NJW 2019, 2918; cf. also JB Nordemann in Fromm / Nordemann, copyright, 12th edition, § 96 UrhG margin no.3). Art. 2 of Directive 2001/29 / EC alone assigns the right to reproduce the protected modalities of action of direct or indirect, temporary or permanent, as well as reproduction in any way and in any form wholly or partially. The modalities of action for dissemination to the public in any form by sale or sale or in any other way are in accordance with Article 4 (1) of Directive 2001/29 / EC and Article 9 (1) (b) of Directive 2006/115 / EC reserved for distribution rights only.

c) This clear demarcation with regard to the copyright independence of the exploitation rights must not be circumvented with reference to Art. 8 Para. 1 of Directive 2001/29 / EC. According to this provision, the member states provide for appropriate sanctions and remedies for violations of the rights and obligations set out in the directive and take all necessary measures to ensure their application (sentence 1) and the sanctions in question must be effective, proportionate and dissuasive ( Sentence 2). However, the content of the exploitation rights provided for in Directives 2001/29 / EC and 2006/115 / EC also determines the modalities of action to be prohibited in the event of their violation. In the event of violations of the right to reproduce, appropriate sanctions are available, in particular with claims to destruction and recall of illegally produced copies, with which the spread of these copies can be effectively prevented. d) In the event of a dispute, there is only a violation of the right of reproduction of the plaintiffs as the sound record manufacturer, but not a violation of their distribution right. Claims based on modalities of action other than the manufacture or production of illegal copies are therefore out of the question. III. A submission to the Court of Justice of the European Union according to Art. 267 para. 3 TFEU is not required (cf. ECJ, judgment of October 6, 1982 - 283/81, ECR 1982, 3415 paragraph 21 = NJW 1983, 1257 - Cilfit among others; judgment of October 1, 2015 - C-452/14, GRUR Int. 2015, 1152 paragraph 43 - Doc Generici, mwN). In the event of a dispute, there is no question relevant to the interpretation of EU law that is not already clarified by the case law of the Court of Justice or cannot be answered without a doubt. A template for the regulation of the pastiche (Art. 5 (3) (k) of Directive 2001/29 / EC) is out of the question because Germany has not made use of the possibility of implementing this exception or restriction. A submission to Art. 8 Para. 1 of Directive 2001/29 / EC is out of the question because this provision undoubtedly does not require a provision corresponding to Section 96 Para. 1 UrhG. The necessary sanctions and remedies for violations of copyright exploitation rights are regulated in Directive 2004/48 / EC on the enforcement of intellectual property rights. IV. Thereafter, the appealed judgment must be set aside on the defendant's appeal and the matter referred back to the Court of Appeal for a new hearing and decision, including the costs of the appeal. V. For the reopened appellate court, reference is made to the following: 1. The question as to whether the defendants, within the scope of the application of section 85 (1) sentence 1 case 1 UrhG, regarding acts of reproduction before December 22, 2002 (see BI 1) can successfully invoke the right to free use in a corresponding application of Section 24 (1) UrhG, the appellate court has to make further determinations as to whether the defendant with the piece

of music "Nur mir" is an independent work within the meaning of Section 24 (1). 1 UrhG (see also OLG Hamburg, GRUR-RR 2011, 396 f. [Juris Rn. 12 to 20]). This should be answered in the affirmative. The piece of music "Nur mir" should be so far apart from the tone sequence of the piece of music "Metall auf Metall" borrowed from the sound carrier that it is essentially to be regarded as an independent work (cf. BGH, GRUR 2017, 895 Rn. 26 - metal on metal III). A corresponding application of Section 24 (1) UrhG is ruled out if the tone sequence recorded on the sound carrier is a work of music and a melody can be seen from the use of the sound carrier and is based on a new work is laid (Section 24 (2) UrhG). In such a case, anyone who interferes in the ancillary copyright of the record carrier, or anyone who interferes in the composer's copyright, cannot invoke a right of free use in accordance with Section 24 (1) UrhG (BGH, GRUR 2009, 403 Paragraph 24 - metal on metal I). The Court of Appeals therefore has to make further determinations on the question of whether the drum samples taken from bars 19 and 20 of the recording "Metal on Metal" and the two recordings of the title "Only me" consistently underline a melody acts within the meaning of Section 24 (2) UrhG. This should be answered in the negative (see OLG Hamburg, GRUR-RR 2011, 396, 397 f. [Juris Rn. 21 to 25]). Contrary to the opinion of the revision, the corresponding applicability of Section 24 (2) UrhG to characteristic rhythm sequences should not be considered. Section 24 (2) UrhG is an exception to be interpreted narrowly. The prerequisites for an analogy should not exist. 2. With regard to claims based on actions taken after December 22, 2002 by the defendant due to violation of the reproduction right pursuant to Section 85 Paragraph 1 Sentence 1 Case 1 UrhG (see BI 2), findings on the risk of inspection must be made up for. 3. Insofar as the claims asserted by the plaintiffs because of violation of their ancillary copyright as a record carrier in relation to the modalities of production due to violation of the reproduction right due to acts committed before December 22, 2002 (see BI 1) and from 22 December 2002, acts committed (see BI 2) as well as with regard to the modalities of placing on the market due to violation of the distribution right (B II 1) and due to violation of the right of reproduction through acts committed from December 22, 2002 (B II 2) are to be checked whether, in the alternative, they are entitled to their ancillary intellectual property rights as performers (section 77 (2) sentence 1 UrhG, section 2 (b) of Directive 2001/29 / EC; section 9 (1) (a) of Directive 2006/115 / EC), further alternatively to the violation of the copyright of plaintiff 1 to the musical work (§ 15 Paragraph 1 Nos. 1 and 2, §§ 16, 17 Paragraph 1 UrhG; Art. 2 Letter a , Article 4 (1) of Directive 2 001/29 / EG) and, in the alternative, can be based on protection under competition law (§ 4 No. 9 UWG aF, § 4 No. 3 UWG). a) Insofar as the claims are based on the ancillary copyright as a performing artist, they should be unfounded for the same reasons as the claims based on the ancillary copyright as a record carrier.

b) As far as the claims on the copyright of the plaintiff to 1 at the music factory are based, nothing else should apply in the result. It is questionable whether the extracted rhythm sequence meets the requirements for a work protected by copyright. In any case, it can be assumed that the defendants can also rely on the right of free use under Section 24 (1) UrhG for all acts of use before December 22, 2002. c) In the absence of any relevant findings by the appeals court, it is not possible to assess whether the claims to protection under competition law can be supported. However, such claims are likely to be remote.

Koch Löffler Schwonke Feddersen Schmaltz

Pre-instances: Hamburg District2004 - 308 O 90/99 - Court, decision of October 8,Hamburg Higher Regional Court, decision of June 7, 2006 - 5 U 48/05 - 92