The European Court of Justice (ECJ) has ruled on questions about the use of technological measures to prevent third party games being played on Nintendo consoles, and the sale of devices designed to circumvent such measures.
EU member states must provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he is pursuing that objective under Article 6(1) of the Copyright Directive (2001/29/EC) (the Directive).
Member states must provide adequate legal protection against the sale of devices that: are marketed for the purpose of circumventing any effective technological measures; have a limited commercially significant purpose or use other than circumvention; or are primarily produced for the purpose of enabling circumvention (Article 6(2), the Directive) (Article 6(2)).
N had adopted technological measures to stop illegal copies of games being played on its game consoles. N brought proceedings in Italy against P for selling devices online that enabled users to play non-N games on N’s consoles, by circumventing the blocking mechanism built into N’s consoles. P argued that the purpose of N’s technological measures was to prevent use of independent software, not just illegal copies, on N’s consoles.
The Italian court sought guidance from the ECJ about the criteria that it should use to assess the scope of legal protection against circumventing technological measures.
The ECJ held that the following criteria applied:
“Effective technological measures” included not only the housing system containing the protected work (such as the video game) with a recognition device protecting it against acts not authorised by the copyright owner, but also portable equipment or consoles intended to ensure access to those games and their use. It was defined broadly under Article 6(2)) and included measures where their objective was to prevent or limit acts adversely affecting the rights of the holder protected by them
The national court should determine whether other measures could cause less interference or limitations to third parties’ activities while still providing comparable protection. This should be assessed by taking account of, among other things, the relative costs and comparative effectiveness of different technological measures, and the technological and practical aspects of their implementation.
The court should also examine the purpose of devices capable of circumventing those measures. Evidence of their actual use by third parties, including how often they were used to infringe copyright or for other purposes, would be particularly relevant.
Legal protection had to respect the principle of proportionality under Article 6(2) and should not prohibit devices or activities that had a commercially significant purpose or use other than to circumvent the technical protection.
The criteria set out by the ECJ gives useful guidance for rights-holders that use technological measures to protect copyright and those who produce devices that may circumvent such measures (but may also have other uses). However, the crucial question of how these criteria apply to the facts, and in particular how the principle of proportionality should be applied, has been left to the national court to decide. Just as third parties may use circumvention devices for infringing and for non-infringing uses, the technological measures themselves may be used for the legitimate purpose of protecting intellectual property but also for anti-competitive aims.
Case: Nintendo Co Ltd and others v PC Box Srl, C-355/12.
First published in the January/February 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.