1709 Blog: for all the copyright community

Thursday, 6 September 2012

Will the CJEU play Nintendo's game?

Going one step further than
Bob Kohn: here's the Nintendo
legal team ...
Another copyright case is winging its way to the Court of Justice of the European Union for a preliminary ruling: it's Case C-355/12 Nintendo et al, which I discovered today via an email circular from the UK Intellectual Property Office (IPO). No clue is given as to the factual background and the InfoCuria page dedicated to this action is not exactly encrusted with useful information, though the referring court would appear to be the Tribunale di Milano, Italy.

The questions referred for a preliminary ruling are as follows:
"(1) Must Article 6 of Directive 2001/29/EC be interpreted, including in the light of recital 48 in the preamble thereto, as meaning that the protection of technological protection measures attaching to copyright-protected works or other subject matter may also extend to a system, produced and marketed by the same undertaking, in which a device is installed in the hardware which is capable of recognising on a separate housing mechanism containing the protected works (videogames produced by the same undertaking as well as by third parties, proprietors of the protected works, ) a recognition code, in the absence of which the works in question cannot be visualised or used in conjunction with that system, the equipment in question thus incorporating a system which is not interoperable with complementary equipment or products other than those of the undertaking which produces the system itself?

(2) Should it be necessary to consider whether or not the use of a product or component whose purpose is to circumvent a technological protection measure predominates over other commercially important purposes or uses, may Article 6 of Directive 2001/29/EC be interpreted, including in the light of recital 48 in the preamble thereto, as meaning that the national court must adopt criteria in assessing that question which give prominence to the particular intended use attributed by the right holder to the product in which the protected content is inserted or, in the alternative or in addition, criteria of a quantative nature relating to the extent of the uses under comparison, or criteria of a qualitative nature, that is, relating to the nature and importance of the uses themselves?"
The 1709 Blog will do its best to keep readers informed as this reference progresses. Meanwhile, anyone who feels the urge to comment on this case for the purpose of nudging the UK government into making representations should email Policy at policy@ipo.gsi.gov.uk before 19 September 2012 -- a remarkably generous date when compared with some earlier Court of Justice references.

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