3 Questions to Jan Bernd Nordemann, IP case law specialist
Anyone involved in digital content is holding their breath in anticipation of tomorrow’s ruling by the European Court of Justice in the case of Sonoma vs GS Media on whether linking to illegal content should be legal. Netopia spoke to German IP lawyer Prof. Dr. Jan Bernd Nordemann. Nordemann is an international authority on digital intellectual property case law.
Per Strömbäck: What is your comment if the EUCJ ruling should be something like what Attorney General Wathelet presented this spring?
Jan Bernd Nordemann: It would make an entirely new concept of public communication, in contrast to previous case law of the CJEU. That would create some severe obstacles for content protection and the fight against illegal business models.
PS: What if the ruling is in line with previous CJEU cases like this?
JBN: From previous case law, linking to illegal content must be a public communication. That is also the conclusion that the German Supreme Court came to in the BestWater-case. This would not change much, this is for example the legal situation in Germany today. It would definitely not break the internet.
Per Strömbäck: Is there a middle ground between the two?
JBN: The CJEU could come up with some kind of requirements for linking to be a public communication. That probably would need to be close to liability requirements. For example, knowledge or negligence – breach of duty of care, maybe? Consequences will depend on how these requirements are set up.
It would be most welcome if the CJEU presented a stringent concept that is ready to be applied to all other cases that are out there.
Thanks for those views!