By Ezra Steinhardt and Fredericka Argent

InfoCuria has released information about a case recently referred to the Court of Justice of the European Union (CJEU) from Tribunale di Milano in Italy.  While the Court has yet to provide detailed underlying factual information, the case appears to raise issues that will be important to companies that rely on the EU Copyright Directive’s anti-circumvention provisions to protect their copyrighted works.

The Italian Court has referred two questions to the CJEU, both of which concern Article 6 of the Copyright Directive (2001/29/EC).  Article 6 requires Member States to provide legal protections to prevent the circumvention of technologies intended to protect against copyright infringement, and also to restrict circulation of devices that are “primarily designed” to enable or facilitate such circumvention.

•    The first question, which is somewhat confusingly worded, appears to ask the CJEU to consider whether the protections of Article 6 extend to certain types of technological protection measures (code recognition chips) that are used in proprietary games console systems, which can prevent unauthorised software — including infringing works — from being run on the system.

•    The second question  asks the CJEU to provide guidance as to when a device is “primarily designed” to circumvent.  More specifically, the question asks the CJEU to set out the criteria that courts should use to determine whether any particular device that has multiple purposes/uses, is “primarily designed” to enable or facilitate circumvention.  The referring court suggests two methods:  either a quantitative approach (that finds devices “primarily designed” for circumvention if the majority of their various purposes/uses are circumventing uses) or a qualitative approach (that finds devices “primarily designed” for circumvention if their most important purposes/uses are circumventing uses).

Although non-parties are generally unable to file briefs with the CJEU, they can communicate their views via their Member State (all Member States are asked by the Court if they wish to make submissions in a case or participate in oral argument).   The UK IPO is seeking comments now, with a deadline of September 19, 2012.