By a judgment issued on last January 14th, the European Court of Justice had ruled on the interpretation of art. 6 of Directive 2001/29, in order to clarify the scope of legal protection, afforded by such provision to copyright holders, aimed to prevent or limit the unauthorized acts of reproduction, communication, making them available to the public or distribution of protected works.
In particular, the Court - empowered by Court of Milan, in relationship to the lawsuit brought by Nintendo Co. Ltd., together with Nintendo of America Inc. and Nintendo of Europe GmbH against PC Box S.r.l. and 9Net S.r.l., to decide on the above-mentioned matter – in its decision, had examined several important issues.
First of all, the Court had ruled on the longstanding issue of the legal nature of videogames, establishing how they can not be defined and, consequently, governed as simple software, since they "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”. It follows that, as a result of the creativity of their authors, if videogames are original as required by the law, they can benefit the protection afforded by Directive 2001/29.
Having clarified this principle, the Court had also established that the expression "effective technological measure", as indicated in art. 6 of the above-mentioned directive, must be intense in broad sense, covering technological measures principally equipping not only the housing system containing the protected work (as, indeed, videogame) with a recognition device, but also portable devices or consoles.
On this point, although, as already said, technological measures affixed on the videogame and on the console are both legitimate, the Court had stated that these measures should only pursue the objective of preventing or eliminating acts not authorised by the copyright holders and must not go beyond what is necessary for this purpose.
In other words, technological protection measures must be adequate for achieving this objective, but, at the same time, they should create limited interference with the activities of third parties that do not need the authorization of copyright holders.
In order to evaluate the adequacy of technological measures applied, the National Court may take into consideration the cost of the different types of technological measures, the technical and practical aspects of implementation, as well as of comparison of their relative effectiveness in relation to the protection of rights of the holder. Such effectiveness, as pointed out by the Court, should not be absolute.
As provided by the Court, the National Court must also examine the purposes of devices, products or components that can circumvent the technological measures in question, checking the frequency with which these resources are actually used in violation of copyright and which are utilized for legitimate uses.