Martin Howe QC appeared for Nintendo at the European Court on this reference from the Court of Milan (Intellectual Property Division). Lindsay Lane was Junior in the case.
This was an action brought by Nintendo the well known video games company against a supplier of devices which allowed users of Nintendo consoles to by-pass the protection measures in the consoles and so use them to play pirate copies of video games. Nintendo brought the claim under the Italian law which gives effect to Article 6 of the Information Society Directive 2001/29 on technological protection measures. The defendant argued that its devices could be used to allow customers to play non-infringing games such as ‘homebrew’ created by developers not licensed by Nintendo and made a reference on the interpretation of Article 6.
The European Court ruled that (1) a video game is not just a computer program but includes other creative elements and so falls under Directive 2001/29 and is not excluded from that directive as a computer program under the Software Directive 2009/24; (2) technological protection measures under Article 6 of the Directive include measures which are incorpated partly in the videogame itself and parly in the console which require interaction between them to allow a game to be played; (3) to be entitled to protection, such measures must be proportionate and it is for the national court to assess whether they are suitable for achieving the objective of protecting copyright works and do not go beyond what is necessary to achieve that objective; and (4) the national court should examine the evidence of actual use of the impugned devices to see how often they are in fact used to allow unauthorised copies of Nintendo and Nintendo licensed games to be played and how often It concerned.