Case C‑355/12

Nintendo Co. Ltd and Others

v

PC Box Srl

and

9Net Srl

(Request for a preliminary ruling from the Tribunale di Milano)

(Directive 2001/29/EC — Copyright and related rights in the information society — Concept of ‘technological measures’ — Protection device — Equipment and protected complementary products — Similar complementary devices, products or components from other undertakings — Exclusion of any interoperability between them — Scope of those technological measures — Relevance)

Summary — Judgment of the Court (Fourth Chamber), 23 January 2014

1.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Scope — Computer programs — Included — Condition — Expression of the author’s own intellectual creation

(European Parliament and Council Directive 2001/29, Art. 1(1))

2.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Effective technological measures — Concept — Recognition device installed partly in the housing system containing the protected work, and partly in portable equipment or consoles intended to ensure access to that work and its use — Included

(European Parliament and Council Directive 2001/29, Recital 9, Arts 2 to 4 and 6)

3.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Effective technological measures — Recognition device installed partly in the housing system containing the protected work, and partly in portable equipment or consoles intended to ensure access to that work and its use — Observance of the principle of proportionality — Criteria for assessment

(European Parliament and Council Directive 2001/29, Recital 48 and Art. 6)

1.        It is apparent from Article 1(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society that that directive concerns the legal protection of copyright and related rights including, for authors, exclusive rights to their works. Works such as computer programs are protected by copyright provided that they are original, that is that they are their author’s own intellectual creation. As regards the parts of a work, there is nothing in Directive 2001/29 indicating that those parts are to be treated any differently from the work as a whole. It follows that they are protected by copyright since, as such, they share the originality of the whole work.

That finding is not weakened by the fact that Directive 2009/24 on the legal protection of computer programs constitutes a lex specialis in relation to Directive 2001/29. In accordance with Article 1(1) thereof, the protection offered by Directive 2009/24 is limited to computer programs. Videogames constitute complex matter comprising not only a computer program but also graphic and sound elements, which, although encrypted in computer language, have a unique creative value which cannot be reduced to that encryption. In so far as the parts of a videogame, in this case, the graphic and sound elements, are part of its originality, they are protected, together with the entire work, by copyright in the context of the system established by Directive 2001/29.

(see paras 21-23)

2.        Article 6 of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society requires the Member States to provide adequate legal protection against the circumvention of any effective technological measure which is defined, in paragraph 3, as any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9, concerning the legal protection of databases.

Those acts constitute, as is apparent from Articles 2 to 4 of Directive 2001/29, the reproduction, the communication to the public of works and making them available to the public, and the distribution of the original or copies of works, the legal protection referred to in Article 6 of that directive applies only in the light of protecting that rightholder against acts which require his authorisation.

In that regard, there is nothing in that directive to suggest that Article 6(3) thereof does not refer to technological measures which are partly incorporated in the physical housing systems of games and partly in consoles which requires interaction between them.

Indeed, it is apparent from that provision that the concept of ‘effective technological measures’ is defined broadly and includes application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism. Such a definition, moreover, complies with the principal objective of Directive 2001/29 which, as is apparent from recital 9 thereof, is to establish a high level of protection in favour, in particular, of authors, which is crucial to intellectual creation.

In those circumstances, Directive 2001/29 must be interpreted as meaning that the concept of an ‘effective technological measure’, for the purposes of Article 6(3) of that directive, is capable of covering technological measures comprising, principally, equipping not only the housing system containing the protected work, such as the videogame, with a recognition device in order to protect it against acts which are not authorised by the holder of any copyright, but also portable equipment or consoles intended to ensure access to those games and their use.

(see paras 24-27, 37, operative part)

3.        Legal protection, referred to in Article 6 of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society against acts not authorised by the rightholder of any copyright must respect, in accordance with Article 6(2) of the directive, the principle of proportionality, interpreted in the light of recital 48 thereof, and should not prohibit devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection.

Accordingly, that legal protection is granted only with regard to technological measures which pursue the objective of preventing or eliminating, as regards works, acts not authorised by the rightholder of copyright such as the reproduction, the communication to the public of works and making them available to the public, and the distribution of the original or copies of works. Those measures must be suitable for achieving that objective and must not go beyond what is necessary for this purpose.

As regards technological measures comprising, principally, equipping not only the housing system containing the protected work, such as the videogame, with a recognition device in order to protect it against acts which are not authorised by the holder of any copyright, but also portable equipment or consoles intended to ensure access to those games and their use, it is for the national court to determine whether other measures or measures which are not installed in consoles could cause less interference with the activities of third parties or limitations to those activities, while still providing comparable protection of the rightholder’s rights. Accordingly, it is relevant to take account, inter alia, of the relative costs of different types of technological measures, of technological and practical aspects of their implementation, and of a comparison of the effectiveness of those different types of technological measures as regards the protection of the rightholder’s rights. That effectiveness does not, however, have to be absolute. That national court must also examine the purpose of devices, products or components, which are capable of circumventing those technological measures. In that regard, the evidence of use which third parties actually make of them will, in the light of the circumstances at issue, be particularly relevant. The national court may, in particular, examine how often those devices, products or components are in fact used in disregard of copyright and how often they are used for purposes which do not infringe copyright.

(see paras 30, 31, 38, operative part)