Circumventing technological measures can be legitimate under certain circumstances

COPYRIGHT

Videogame is complex material comprising not only a computer program but also graphic and sound elements, which, insofar as they contribute its the originality, are protected by copyright in the context of Directive 2001/29.

"23. That finding is not weakened by the fact that Directive 2009/24 constitutes a lex specialis in relation to Directive 2001/29 (see Case C-128/11 UsedSoft [2012] ECR, paragraph 56). In accordance with Article 1(1) thereof, the protection offered by Directive 2009/24 is limited to computer programs. As is apparent from the order for reference, videogames, such as those at issue in the main proceedings, constitute complex matter comprising not only a computer program but also graphic and sound elements, which, although encrypted in  computer language, have a unique creative value which cannot be reduced to that encryption. In so far as the parts of a videogame, in this case, the graphic and sound elements, are part of its originality, they are protected, together with the entire work, by copyright in the context of the system established by Directive 2001/29."

Legal protection against circumventing technological measures only applies in the light of protecting the rightholder against acts which require his authorization 

"25. Those acts constitute, as is apparent from Articles 2 to 4 of Directive 2001/29, the reproduction, the communication to the public of works and making them available to the public, and the distribution of the original or copies of works. 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."

A “technological measure” can also include technological measures portable equipment or consoles intended to ensure access to those games and their use.

"37. [...] that Directive 2001/29 must be interpreted as meaning that the concept of an ‘effective technological measure’, for the purposes of Article 6(3) of that directive, is capable of covering technological measures comprising, principally, equipping not only the housing system containing the protected work, such as the videogame, with a recognition device in order to protect it against acts which are not authorised by the holder of any copyright, but also portable equipment or consoles intended to ensure access to those games and their use."

National court should determine efficacy of other measures or measures which are not installed in consoles, taking into account proportionality, effectivity and actual use.

"38. It is for the national court to determine whether other measures or measures which are not installed in consoles could cause less interference with the activities of third parties or limitations to those activities, while still providing comparable protection of the rightholder’s rights.
Accordingly, it is relevant to take account, inter alia, of the relative costs of different types of technological measures, of technological and practical aspects of their implementation, and of a comparison of the effectiveness of those different types of technological measures as regards the protection of the rightholder’s rights, that effectiveness however not having to be absolute.
That court must also examine the purpose of devices, products or components, which are capable of circumventing those technological measures. In that regard, the evidence of use which third parties actually make of them will, in the light of the circumstances at issue, be particularly relevant. The national court may, in particular, examine how often those devices, products or components are in fact used in disregard of copyright and how often they are used for purposes which do not infringe copyright."

IPPT20142301, CJEU, Nintendo v PC Box

C-355/12 - ECLI:EU:C:2014:25