CALL FOR PAPERS

The KSLR EU Law Blog hereby invites you to submit abstracts for blog posts on

 any area of EU law

(including but not limited to internal market, financial regulation, human rights, data-protection, environment).

Submissions covering any of the following topics are particularly welcome:

  • UK Referendum’s effects on EU law and European integration
  • EU migration law and refugees’ crisis
  • EU law and institutional balances
  • Developments on the relationship between EU law and International law
  • Recent developments of EU social policies

We also invite submissions on:

  • Coverage of EU law-related events
  • Reviews of recently published EU law-related books as well as
  • Recent developments of EU case law

Ideally we are looking for 1000 – 1500 words articles.

Please refer to our style guidelines.

Please send an abstract or full articles to giulia.gentile@kcl.ac.uk and giorgia.sangiuolo@kcl.ac.uk by 31 January 2017.

We look forward to hearing from you!

Opinion 2/13: Some Further Reflections

Veronica Shleina: LL.B King’s College London, LL.M Candidate University College London

Introduction

In December 2014[1] the CJEU “dropped its Christmas bombshell”[2] declaring the Draft Agreement on the Accession to the ECHR[3] incompatible with EU law, thereby deeming the future accession almost impossible. While some of the concerns that Luxembourg addresses seem plausible, overall the Opinion appears to be a disappointing incarnation of playground politics. It is clear that despite the CJEU’s view, there is a real need for accession.

Continue reading

There will be fireworks on Bonfire Night: a quick look at the EU’s Pyrotechnic Directive

Alice Vranch

LLB student at Bucks New University

 

It is November, the month in which many of us will attend a fireworks display, be it to celebrate Diwali or Bonfire night. Whether you take part in an organised event or simply let off a few fireworks in your garden, the safety of everyone at the event will be of paramount importance. We all remember the adverts shown annually on television during the first week of November, warning us of the dangers of returning to check a firework. However, have you ever given much thought to what fireworks are made of? Have you read what was written on the side of the fireworks or on their box? Were the instructions even in a language that you could understand? Often in a moment of excitement these things can be overlooked. This article concerns the law surrounding the manufacturing of fireworks in Europe.

The manufacturing and use of fireworks in the UK is primarily governed by the Fireworks Regulations 2004 (under powers delegated from the Fireworks Act 2003), the Pyrotechnic Articles (Safety) Regulations 2010, and the British Standards BS 7114 and BSEN 14035. However, on 22nd May 2013 the European Commission proposed the Pyrotechnic Directive 2013/29/EU that was adopted on the 12th June 2013. All the Member States have to transpose the Directive by 30th June 2015 and apply it from 1st July 2015.

Amongst other things, a number of measures are now in place to protect consumers who buy fireworks. Articles 8-15 of the Directive contain obligations to manufacturers, distributors and importers of pyrotechnic products in the European Union. Some of these obligations include the following:

  • Fireworks must carry a CE marking (Articles 19-20 of the Directive).
  • Manufacturers must keep all related documentation for ten years to ensure that the composition details of the fireworks are available on request.
  • The writing and instructions must be in the language of the Member State in which it is being sold and used.

Fireworks will be categorised according to the risk of injury associated with the particular firework; there will be four classifications as detailed in Article 6(1)(a) of the Directive. Indoor fireworks used in theatres will have their own classifications, as per Article 6 (1)(b)(i)(ii). The purchase age will differ according to which category the purchased firework falls into (see Article 7(1)(a)). The operator’s skill levels will be taken into account: an adult with specialist knowledge of fireworks will be able to buy and use fireworks from the highest, F4 category. Article 7(2) informs us that under certain circumstances Member States are at liberty to raise the firework-purchasing age limit on grounds of public order, security or health and safety. Member States may also lower the age limits for people who have been trained to handle fireworks or those who are completing their pyrotechnic training. Member States need to let the Commission know what procedures they have in place to identify and authorise persons with specialist knowledge.

When the autumn sky is illuminated with fireworks that have hopefully been CE marked, remember (remember) to buy pyrotechnic products that adhere to safety guidelines and ensure that your friends, family and pets are safe.

Given that firework manufacturers, distributors and importers begin observing the Directive from today, we can all enjoy the safer big bangs much earlier than July 2015.

 

This article has been reposted from the Bucks New University Law Blog

Should We Be Able To Modify Nintendos? A Note On Nintendo v PC Box

Justin Koo LLB, LLM

PhD student, Dickson Poon School of Law, King’s College London

 

For the avid gamers out there, you would no doubt be aware that playing video games can be quite an expensive hobby. On average one video game costs about £30-£45,[1] whereas, the cost of buying a mod chip to ‘modify’ your console is about £70-£100.[2] Therefore, one can see the obvious allure in purchasing a mod chip as it provides a cheap albeit illegal alternative to buying new games. However, the legality of mod chips for video game consoles has always been in question because its usage normally implies the playing of unauthorised or illegitimate copies of video games.[3]

Without a mod chip these illegitimate copies of games will not work given that video game hardware and software are both encoded with technological protection measures (TPM) in order to prevent such acts. Regardless of this major purpose, there are other ways in which mod chips can be used. Mod chips also allow the use of ‘homebrew’ software, which in lay-man terms, allows users to run applications and processes that ordinarily are not available on a non-modified console. For example, homebrew software would allow: emulator programs to run – these enable the playing of video games from other platforms (normally older discontinued consoles),[4] playing licensed video games from other regions and playing other non-video game media such as DVDs and MP3s (where previously unavailable).[5]

These very mod chips are the subject of dispute in the Nintendo v PC Box[6] case that has been referred by the Tribunale di Milano to the Court of Justice of the European Union (CJEU). In short, Nintendo argued that PC Box’s mod chips circumvent the TPMs designed to prevent the playing of unauthorised video games on their Wii and DS consoles. However, PC Box argues that the true purpose of Nintendo’s TPMs is to prevent the use of independent software and to geographically segment markets by restricting the use of games according to region. Therefore, the Italian district court referred two questions to the CJEU concerning the circumvention of Nintendo’s TPMs on their Wii and DS video game consoles by PC Box’s mod chips:

1)    The first question concerns the application of Article 6(1) of the Information Society Directive 2001[7] to the TPMs contained in Nintendo’s hardware and software. Basically, the first part of the question asks whether Article 6(1) is applicable to Nintendo’s consoles (hardware) that have TPMs although they are not copyright works but merely facilitate the use of them. Secondly, it asks whether Article 6(1) still applies even though the purpose of Nintendo’s TPMs is not only to restrict the infringement of their copyright works (namely reproduction of their video games) but also to preclude interoperability.

2)    The second question focuses on the application of Article 6(2) to the supply of PC Box’s mod chips. The district court asks the question of how the purpose of a device (mod chip) is to be decided in determining whether there are any other commercially significant uses.

In a more general sense there are two major issues that can be inferred from the above questions. In the first place, the validity of video game mod chips is in the spotlight as it is being questioned whether they have any other commercially legitimate purposes that do not involve the infringement of copyright works. And secondly, to what extent will Article 6(1) protect TPMs that go further than merely preventing the infringement of copyright works especially in instances that involve the prevention of acts that do not require the authorisation of the copyright owner.

 

The Opinion

Advocate General Sharpston in her opinion suggested that the CJEU should answer the first part of the first question in the affirmative. Article 6(1) should be applicable to Nintendo’s hardware on the grounds that Article 6(3) details a wide range of access controls or protection processes including copy control mechanisms. If TPMs not contained in the copyright material itself were exempted from protection, then a broad range of TPMs would be excluded contrary to the objective of the provision. However, the TPM used must be proportional. It will be a matter for the domestic court to determine whether the acts requiring authorisation can be restricted without also restricting acts that do not require authorisation based on the current state of technology. What this means is that TPMs that are disproportionate to the purpose of preventing copyright infringement will not be protected under Article 6(1) as it will not be an ‘effective technological measure’.

Regarding the second question, AG Sharpston suggested that the relevant criteria for determining whether Nintendo should gain protection against the supply of PC Box’s mod chips was Article 6(2)(b). In other words, if the mod chips have no other commercially significant purpose than infringing copyright in video games then its supply will be subject to legal repercussions. However, in reaching this conclusion she did note that if the mod chip can be used for legitimate purposes, then it should influence the decision regarding whether Nintendo’s TPMs are proportional. As such if the mod chips can be used for commercially significant legitimate means, then there is the possibility that Nintendo’s TPMs are overly (and unnecessarily) broad and as such may not qualify as ‘effective’.[8] The consequence of this is that Nintendo’s TPMs may fall outside the scope of protection provided by Article 6(1).

Considering all the evidence at hand and the opinion of AG Sharpston it would seem that the decision of the case turns on the finding of any other commercially significant purposes for the mod chip. However, it is this writer’s opinion that even in the instance of other legitimate uses being found, the primary purpose of the mod chip to facilitate the playing of unauthorised or illegitimate video games outweighs any other use. Therefore, Nintendo should receive protection for its TPMs as well as protection against the supply of PC Box’s mod chips.

 

Interesting Issues

Although the Nintendo v PC Box case is interesting in its own right, it does raise some further issues and questions which are as interesting as the case itself. One of the first issues discussed in the case at the domestic level concerned what the applicable law should be, that is the Computer Programs Directive 2009[9] or the Information Society Directive 2001. The decision to choose the Information Society Directive as the applicable law is a significant one because it meant categorising video games as more than software. In fact, the court held that video games cannot simply be regarded as computer programs but instead are “complex multimedia works.”[10] The implication of this is that video games are afforded a broader range of protection than it would be entitled to if were categorised as a mere computer program.

A second interesting point to note is the manner in which the referring court addressed the second question in Nintendo v PC Box. In applying Article 6(2) the court was only concerned with subsection (b), ignoring subsections (a) and (c). It would be desirable to apply Article 6(2) in a cumulative manner for the purpose of determining whether the supply of a device should be protected against opposed to singling out an individual criterion.[11] The consequence of this is that the Italian district court could have avoided the hard question of determining whether PC Box’s mod chips had any other commercially significant purposes by merely looking at the reason the device was designed and its marketing. The rationale behind this criticism is that the marketing and design of PC Box’s mod chips would give insight into the primary purpose of the mod chips as well as any other commercially significant purposes. Thus, answering the question posed by the district court anyway.

But more generally, this case raises the issue of whether TPMs belong in copyright law. Although there is virtue in protecting TPMs given that they serve the purpose of preventing copyright infringements, the reality is that there is nothing inherently copyright-esque about TPMs or anti-circumvention protection. It can be argued that Article 6(1) is a black sheep in the copyright flock.

 

 

 


[1] Price range as found on www.game.co.uk.

[2] This price range is based on my own research of websites selling such devices.

[3] The illegitimate copies of video games are normally downloaded from torrent sites and then copied to DVDs or mass storage devices such as external hard drives.

[4] Note this would most likely also involve copyright infringement – reproduction of video games

[5] See http://www.consoleunlock.com/?hop=mattmartin for the ways in which a mod chip can be used on a Nintendo Wii.

[6] Case C-355/12

[7] Directive 2001/29

[8] Of course the opposite applies, in that, if the mod chip has no other commercially legitimate purpose(s) then the TPM used by Nintendo will likely be proportional and subject to protection under Article 6(1).

[9] Directive 2009/24

[10] Case C-355/12 para 25

[11] Article 6(1) (a), (b) and (c) should be considered together.