Not everything is piracy: copyright protection must be proportionated

Posted on 23 January 2014 Updated on 23 January 2014

Today the European court of justice released an interpretative decision (case C-355/12 Nintendo / PC Box srl) which may have an important effect for the development of copyright legislation in Europe. In a case between Nintendo and a small software company and others (pending before the commercial courts of Milan), the judges declared that technological measures deemed to protect copyright could be eluded when this is done for scopes which are not foreseen by the Copyright Directive (i.e. Directive 2001/29/EC). In other words, while copyright protection (and related legitimate protection technological measures) shall cover unauthorized acts of reproduction, communication, making available to the public or distribution of works for which authorization is required of the holder of a copyright, such protection – however – cannot be extended to prevent further activities, because this would adversely affect business freedom and innovation.

In the case at stake, Nintendo claimed that the opponents were commercializing devices and software permitting to run non-agreed games and applications over Nintendo’s consoles. Nintendo maintained that the business of the opponents was based on the elusion of the technological measures established to protect its copyright. The opponents  did not deny that they were “cracking” such technological measures. However, they claimed that they were not doing with the scope to infringe copyright under the ambit protected by the Copyright Directive. The European court supported the latter reasoning.

Although the ruling of the Court of Justice concerns a very specific case, the potential of this legal interpretation is enormous. The judges are clearly giving an important signal to the European institutions which, with the next 5-years mandate starting in 2015, will commence the revision of the European copyright framework. According to the court, not everything is piracy and legislator should look at business, social behaviours and consolidated rights with new eyes : some activities that are regarded to be illicit on the basis of traditional copyright schemes, should be considered legitimate and lawful instead. Thus, copyright protection should be balanced and in line with the development of technologies and consumer demand,  so as to not undermine the potentials of innovation and business development.

A public consultation, expiring on February 5th, 2104, is already in progress.

Here the PR of the court.