In a preliminary reference to the ECJ (Case C-355/12 Nintendo v PC Box
), Advocate-General Sharpston today handed down her Opinion (see HERE
) concerning the technological protection mechanisms (TPMs) widely relied upon by games and console manufacturers to combat piracy in the video games sector.
The ECJ reference related to the handheld ‘Nintendo DS’ and the popular Nintendo ‘Wii’ console which employ TPM systems contained within the video games themselves (stored on cartridges or on DVDs) and also on the games consoles which, together, work like a lock and key to prevent unauthorised use of pirate games and prevent copying of genuine ones. The issues in this ECJ reference focused on the scope of protection afforded to TPMs under Article 6 of the Information Society Directive 2001/29/EC (“InfoSoc Directive”).
AG Sharpston made clear that the InfoSoc Directive permitted TPMs that were incorporated within the Nintendo games (stored on cartridges or DVDs) and
on the Wii and Nintendo DS devices. She expressly rejected the argument that the InfoSoc Directive did not protect TPM measures that were incorporated on the Wii and Nintendo DS devices, recognising that to find otherwise would undermine the ability of rights holders to adequately protect their products against piracy. The AG’s robust opinion on this point will no doubt be welcomed by the creative games sector and it would be surprising if the ECJ rules otherwise.
The AG also considered the effect of TPM measures on preventing or restricting use of Nintendo games on other devices (i.e. on another third party device) or conversely, non-Nintendo products on a Nintendo device (such as so-called ‘homebrew’ games, which are video games produced by consumers). Whilst this raised both copyright and competition law issues, the AG declined to express any view on the competition aspect because this was not an issue before the ECJ. 
In order to qualify for protection under Article 6 InfoSoc, the AG’s view was that the national court must verify whether the application of the TPMs complies with the principle of proportionality. This involves considering whether TPMs can achieve their protective objective without disproportionately preventing or impeding the user’s ability to carry out what would otherwise be non-infringing acts (such as the playing of homebrew games).
The AG also highlighted the importance of ascertaining the ultimate purpose or use of the mod chips and game copiers: to what extent can they be used for non-infringing purposes? If their primary use was for infringing purposes, this would strongly indicate that the TPM is proportionate, such that it would be protected under Article 6 InfoSoc. On the other hand, where the primary use of mod chips or game copiers was for legitimate, non-infringing purposes, the use of TPMs may be disproportionate in such circumstances and fall foul of Article 6 InfoSoc.
The purpose of a mod chip or game copier will be a question of fact in each case for the national courts to determine. However, bearing in mind that such circumvention appear to be primarily used for infringing purposes, it seems likely that TPMs relied upon by rights holders will be proportionate in most circumstances.
It will be interesting to see whether the ECJ chooses to follow the AG’s approach in its decision which we expect will be handed down in late 2013/early 2014.
 It is worth noting in this context that the Register of Copyrights (the director of the US Copyright Office) rejected an allegation that the objective of TPM systems would be to exclude competition for games developed by independent producers. See further, Dr M Ficsor’s paper, ‘TPM Systems to protect video games and illegal “mod chips” to circumvent them – in the light of a referral to the CJEU’ dated 4-5 April 2013, accessible at http://ow.ly/p1zCj