Brussels, 23/01/2014 (Agence Europe) - “Circumventing a protection system of a games console may, in certain circumstances, be lawful”, said the European Court of Justice in a ruling in case C-355/12 on Thursday 23 January, pointing out that “the manufacturer of the console is protected against that circumvention only in the case where the protection measures seek to prevent illegal use of videogames”.
A court in Milan is hearing a dispute between the manufacturer of video game consoles Nintendo and company PC Box. Nintendo installs a recognition system in the consoles, and an encrypted code on the physical housing system of videogames, which prevent the use of illegal copies of videogames. PC Box markets original Nintendo consoles together with additional software consisting of applications from independent manufacturers (“homebrews”), the use of which requires the installation, on the consoles themselves, of PC Box equipment which circumvents and deactivates the technological protection measures of consoles. Nintendo considers that PC Box equipment seeks principally to circumvent the technological protection measures of its games. PC Box considers that Nintendo's purpose is to prevent use of independent software intended to enable movies, videos and MP3 files to be read on the consoles, although that software does not constitute an illegal copy of videogames. The Italian court asked the Court of Justice to clarify the legal protection that Nintendo can claim under the EU directive on copyright (2001/29/EC) in order to prevent the circumvention of technical protection measures.
In the ruling, the Court of Justice says that the directive requires the member states to provide adequate legal protection against the circumvention of any effective “technological measure” intended to prevent or restrict unauthorised acts of reproduction, communication, public offer, or distribution. This protection must not prohibit devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection for unlawful purposes. The Italian court must therefore decide on the scope of the technical protection introduced by Nintendo, not in terms of use of the consoles as defined by Nintendo, but in terms of the aims of the measures provided by PC Box, taking account of the use that is actually made of them by third parties. The referring court may also examine whether PC Box's equipment is frequently used to read unauthorised copies of Nintendo games on Nintendo consoles or if, on the contrary, they are instead used for purposes which do not infringe copyright. (FG/transl.fl)