# C_2014093EN.01000801.xml

| 29.3.2014 | EN | Official Journal of the European Union | C 93/8 |
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29.3.2014

EN

Official Journal of the European Union

C 93/8

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Judgment of the Court (Fourth Chamber) of 23 January 2014 (request for a preliminary ruling from the Tribunale di Milano (Italy)) — Nintendo Co. Ltd and Others v PC Box Srl, 9Net Srl

(Case C-355/12) (1)

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(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)

2014/C 93/12

Language of the case: Italian

Referring court

Referring court

Tribunale di Milano

Parties to the main proceedings

Parties to the main proceedings

Applicants: Nintendo Co. Ltd, Nintendo of America Inc., Nintendo of Europe GmbH

Applicants:

Defendants: PC Box Srl, 9Net Srl

Defendants:

Re:

Re:

Request for a preliminary ruling — Tribunale di Milano — Interpretation of Article 6 of 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 (OJ 2001 L 167, p. 10), read together with recital 48 in the preamble to that directive — Concept of ‘technological measures’ — Protection device which excludes any interoperability between, first, the equipment and complementary protected products and, second, similar complementary equipment and products not originating from the manufacturing undertaking or from undertakings authorised by it — Relevance of the designation assigned by the manufacturing undertaking to those technological measures.

Operative part of the judgment

Operative part of the judgment

| 1. | 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. |
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1.

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.

| 2. | 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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2.

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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(1)  OJ C 295, 29.9.2012.

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