This was reference for a preliminary ruling from
the Tribunale di Milano (Italy), seeking clarification as to the interpretation
of Article 6 of the InfoSoc Directive on technological
protection measures.
In particular, the questions referred by the
Italian court read 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 (video games 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 precludes interoperability with complementary
equipment or products other than those of the undertaking which produces the
system itself?
2. If it should be necessary
to consider whether or not the use of a product or component to circumvent a
technological protection measure predominates over other commercially
significant 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 apply criteria which give prominence to
the particular intended use attributed by the rightholder to the product in
which the protected content is inserted or, in the alternative or in addition,
criteria of a quantitative 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?
Here's what the CJEU replied:
"Directive
2001/29/EC of the European Parliament and of the Council of 22 May 2001 on
the harmonisation of certain aspects of copyright and related rights in the
information society 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 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 however not having
to be absolute. That 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."
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