CLINICAL – IV (MOOT COURT EXERCISE & INTERNSHIP)

CASE PRESENTATION

Nintendo Co Ltd. v PC Box [2014] ECDR 6

VISHNU . P
BC0150035
VISHAL . R
BC0150034
PRELIMINARY RULING 
ACCORDING TO ARTICLE 267 OF THE TREATY ON THE FUNCTIONING
OF THE EUROPEAN UNION,
A PRELIMINARY RULING IS A DECISION OF THE EUROPEAN COURT OF
JUSTICE (ECJ) ON THE INTERPRETATION OF EUROPEAN UNION LAW,
GIVEN IN RESPONSE TO A REQUEST FROM A COURT OR TRIBUNAL OF A
EUROPEAN UNION MEMBER STATE. A PRELIMINARY RULING IS A
FINAL DETERMINATIONS OF EU LAW, WITH NO SCOPE FOR APPEAL.
1ST ISSUE :

• whether the implementation of technological protection measures such as

those at issue in the main proceedings used by Nintendo exceeds what is
provided for that purpose by Article 6 of Directive 2001/29, such as
interpreted in the light of recital 48 in the preamble to that directive.
ARTICLE 6 OF DIRECTIVE 2001/29/EC

• Information society Directive (or) InfoSoc Directive

• The legal protection of copyright and related rights, including, for authors,
exclusive rights to their works. As for works such as computer programs, they
are protected by copyright provided that they are original, that is that they are
their author’s own intellectual creation
• It requires the Member States to provide adequate legal protection against the
circumvention of any effective ‘technological measure’
• 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.
RECITAL 48 OF THE DIRECTIVE

• Recital 48 of the Directive declares that “such legal protection should be provided in
respect of technological measures that effectively restrict acts not authorised by the
rightholders of any copyright, rights related to copyright or the sui generis right in
databases without, however, preventing the normal operation of electronic equipment
and its technological development.
• Such legal protection implies no obligation to design devices, products, components
or services to correspond to technological measures, so long as such device, product,
component or service does not otherwise fall under the prohibition of Article 6.
2ND ISSUE ,
• Tribunale di Milano asks what importance has to be reserved to the uses of the
circumventing device when assessing whether TPMs deserve or not protection
under the Directive
• the District Court specifies that a number of considerations are possible. First, one
can take into account the intended use attributed by the manufacturer of the
protected device
• Second, a quantitative assessment could verify the volume of infringing behaviours
compared to legitimate behaviours
• Third and finally, qualitative arguments could assess the relative importance of
either behaviour. Which one of these arguments, if any, a national court has to take
into account when deciding whether TPMs are protectable?
CONCLUSION

• The European Court ruled that a video game falls under Directive 2001/29 as
it is not only a computer program but also includes other creative elements.
In addition, it is the national court who should examine the evidence of the
actual use of the impugned devices to see just how often they are used to
allow unauthorized copies of Nintendo-licensed games to be played.
• The right holders have to demonstrate that pirates prevail over legitimate
users of their products, and that their TPMs are the only possible solution
(keeping into account costs, technology and effectiveness) to protect
copyright without hindering third parties products (interoperability).