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Copy Protection Devices

Nintendo ‘DS’ and Wii consoles are designed not to play copies of games that do not contain the recognition code embedded by Nintendo to authorise use. Copyright law prohibits devices and services designed to circumvent technological measures applied to prevent a use of a copyright work that has not been authorised by the copyright holder. Not only is there a civil remedy for circumvention of the measures but it is also a criminal offence to manufacture or supply circumvention devices or supply circumvention services. Nintendo ‘DS’ and Wii consoles will not play games not authorised by Nintendo for use on it. That stops the consoles from playing illegal copes of Nintendo games. But it also stops them from playing games that are sourced from a legal competitor of Nintendo and whose copyright belongs to that competitor, not to Nintendo. What, then, is the law when a device to stop unlawful use of one copyright work also stops perfectly lawful use of another copyright work on the same equipment?  
Last week the European Court of Justice delivered a judgment setting out the principles to be applied by an Italian court in a case (C -355/12) brought by Nintendo against PC Box. PC Box deactivated the Nintendo recognition code on Nintendo consoles sold in Italy. After first finding that the same legal principles apply to console games as to other copyright works, the EU Court dealt with the issue as one of proportionality. In any case about circumventing copy protection devices, the legal issue is whether an alternative technical solution exists that can cause less interference with the legitimate use of a product, while still providing comparable protection of the rightholder’s rights.  Relevant factors include cost-effectiveness. They also include: how often the particular circumvention devices are in fact used in disregard of copyright and how often they are used for purposes which do not infringe copyright. These are all matters of evidence to be decided by the court dealing with the matter.  If there existed a less intrusive alternative but it was not used, it should not be unlawful to circumvent the device actually installed. 
This case was not about regional coding (which prevents the use in one part of the world of a copyright work bought in another). But it will have repercussions in that context too. One of the questions will be whether the geographic division made by the code treats the European Economic Area (EEA) as a single area or not. A copyright work marketed in any state of the EEA with the consent of the copyright holder does not need any further authorisation from the rightholder to be used the same way in any other EEA state. The rightholder’s rights in the EEA are “exhausted” by the first consented-to sale in the EEA. It is hard to see how a device that prevented the use in (say) the UK of a copyright work purchased in (say)  Romania could ever be justified. But where the consent had been for a first marketing in (say) Japan or the United States, that would not “exhaust” the right in the EEA and so would not  authorise use in an EEA state. So a regional coding restricted to one of those countries could be taken to signify and implement absence of consent to use anywhere in the EEA. In that case circumvention would remain illegal as it would enable unauthorised use.

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