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.

UKAEL Annual Lecture 2013 – Sir Nigel Sheinwald on ‘Britain and Europe: A New Stage in an Old Debate’

Adrienne Yong

PhD Candidate at King’s College London

 

A year ago I wrote on the Annual Lecture Lady Justice Arden gave on proportionality. This year I had the pleasure of attending the UK Association of European Law (UKAEL)’s Annual Lecture chaired by Prof. Sir Francis Jacobs (President, soon to be succeeded by Prof. Sir Alan Dashwood) and presented by Sir Nigel Sheinwald, the previous British Ambassador to the United States and British Permanent Representative to the EU. Needless to say, his ex-civil servant status under the auspices of the Foreign and Commonwealth Office held him in good steed to be discussing the relevant pros and cons of Britain remaining a EU Member State (MS) in light of the proposed referendum by the Conservative Party (should they remain in government come 2017).

 

Sir Nigel began with the caveat that his background was not in law therefore the talk would be on Europe, as opposed to European law. For a European law researcher, this political aspect was a refreshing break from the convoluted doctrinal analysis that takes up most of a legal researcher’s time. He explained that whilst recognising the Britain-Europe discussion was not novel, the stage the discussion is reaching now is becoming more so. The EU is changing, and these changes are affecting British membership. Sir Nigel broke his argument down into first discussing British exceptionalism, the changes the EU is facing, the international reaction to the UK and his conclusions on British membership of the EU.

 

British exceptionalism

The main event that Britain found itself lucky to have escaped was the Eurocrisis. It had always been “stubbornly negative” about the EU, but the choices made in regards to opting out of the single currency seemed to bear fruit in terms of escaping the main crisis befalling the EU at present. Its strong sense of Parliamentary sovereignty as well as common law traditions in Britain were two reasons it opted out to begin with.

 

However, Britain did sign up to membership of the EU for a good reason. Sir Nigel cites Dean Acherson, ex-US Secretary of State, and his lesser known quote about the UK’s roles in both the USA and commonwealth nations. He stated that in both areas, the UK’s role was “about played out.”[1] It would seem that the EU would have been the best next course for the UK, remaining in the mainstream but negotiating special arrangements for themselves considering their relative uncertainty at the outset. Membership was thus “conditional”. Modern EU conditions should seem more acceptable to the UK now, however, one must nonetheless tread lightly given the changes it is undergoing presently.

 

Changes in the EU

As mentioned, the Eurocrisis is the most obvious change the EU has gone through, which has severely impacted many opinions in the UK as to the value of the remaining in the EU. There is a close relationship between monetary integration, democratic legitimacy and national Member State control, rendering upholding the Eurozone and single market a more difficult task. Sir Nigel toyed with the idea that perhaps now it is not credible to be excluded from the euro given the solidarity demonstrated therein. However, the Eurocrisis left a bad impression on the UK. The EU will have to do the most they can to stabilise the crisis, with efforts focused there rather than with any other issues the UK has prioritised. Being excluded from these crucial tasks and discussions will have the negative effect of widening gap between the UK and its allies.

 

He also argues that it is unclear if eurosceptics have reflected the population’s sentiments accurately, leading onto the international reaction to the UK’s apparent disdain. Clearly, given the changes the EU is undergoing, stakes are higher if Britain decides to withdraw. However, the more important issue remains that the potential is more real now of this withdrawal. Interestingly, for governments in the Eurozone, survival is most important. The risk of withdrawal of the UK is peripheral in comparison. However, there is still time before this exit is decided with both European Parliament and UK elections a way off. Sir Nigel highlights that the EU may want to consider certain reforms, with the Working Time Directive and tougher action on benefit fraud given the growth of free movement of persons among his suggestions. However, convening an Intergovernmental Conference (IGC) which would be necessary to make the changes the UK so desperately wants, cannot feasibly be done in the time before the referendum.

 

International Reaction to the UK

The most poignant reaction comes from President Obama of the USA, and his piece of advice to David Cameron as to the UK’s membership, stating that it would be a mistake for the UK to leave the EU.[2] Similarly, the Australian government wrote to William Hague, Foreign Secretary of the UK, on this very topic on February 14 also urging reconsidering leaving the EU. These strong sentiments came off the back of David Cameron’s own speech on January 23 where he asserted that the EU was to ‘secure prosperity’[3] and that there should be a maintained role for the UK. Additionally Sir Nigel emphasised that the Japanese memo to the UK reviewing the UK’s balance of competence between itself and the EU[4] also strongly discouraged leaving, for it would negatively affect the Japanese’s entry to the EU market. Germany has begun to overtake the UK in being the key location for new inward investment projects especially from Japan, thereby incentivising the UK to consider remaining in the EU for trade reasons.[5]

 

Value of British Membership to the EU

If these compelling arguments in terms of the international reaction were not enough, Sir Nigel continued on to state his position believing in the benefits of the UK remaining the EU. Though quality of membership would diminish as the euro diminishes in importance, many other areas would remain unchanged. The single currency is but one of the EU’s projects. He described it as a long and winding road. The Eurocrisis may accelerate, but otherwise development in the EU will benefit the UK. The arguments to stay in are compelling and even on a business level, institutions such as the Confederation of British Industry (CBI) agree that withdrawal would be detrimental. Exports to the EU are even larger than those of growing emergent economies.

 

Sir Nigel thus emphatically put his position across that the UK should remain in the EU, and whilst the old debate has seen certain quite significant changes, the position – both in terms of the UK’s membership and one’s opinion as to the benefits of the UK’s membership – should remain unchanged.

 

 

Call For Papers – The Thousand Faces of the Four Freedoms

KSLR European Law Blog hereby invites you to submit abstracts on the topic of  “The Thousand Faces of the Four Freedoms”

The EU internal market – the embodiment of the four fundamental freedoms of goods, services, persons and capital – has arguably been one of the EU’s most successful and indeed influential constructs. However, like most EU concepts, it is troubled by divergent interpretations. This has led to great debate by various commentators, and it is these plentiful widespread arguments to which we seek discussion for the blog. Articles and case comments on any areas related, directly or indirectly, with any one of the EU’s four freedoms are welcomed.

Please submit abstracts of no more than 250 words by 4 November 2013 to adrienne.m.yong@kcl.ac.uk and agne.limante@kcl.ac.uk. We only accept abstracts relating to EU law.

Authors of selected abstracts will be informed within two weeks. A full paper (1,500 to 2,000 words) should be submitted by 9 December 2013. The style guidelines may be found at http://kslr.org.uk/blogs/europeanlaw/about-us/. The articles resulting from selected abstracts will be posted on KSLR European Law Blog website.

The call for papers is open to submissions from students and professionals from the UK and abroad but only specific to EU law.

Please email the above addresses if you have any further questions. We look forward to hearing from you!


KSLR EU Law Blog is a blog run by the students of the King’s College London and forms a part of the KCL Student Law Review. The blog is an informal academic forum in which law students and professionals express their opinion EU law issues and are informed about recent developments in EU law. You can like us on Facebook or follow us on Twitter @EUKSLR

Case solved: CJEU releases its final interpretation of ‘regulatory act’

Dr. Agne Limante

MA candidate in EU Law at King’s College London

 

This short note is an update to our earlier post Inuit and Microban: ECJ explains notion of ‘regulatory act’.

 

Yesterday, 3 October 2013, the Court of Justice of the European Union (CJEU) released its final judgment in the Inuit case[i] – a case which concerns the standing requirements in annulment actions and which is an appeal against the earlier General Court’s interpretation.[ii]

Under Article 263(4) of the Treaty on the Functioning of the European Union (TFEU), establishing the basis for annulment actions of private applicants, any natural or legal person may “institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures”. Up until now there was still a doubt as to what a “regulatory act” might include as no further reference could be found in the Treaties, no final decision of the Court of Justice existed and appeal from the General Court was pending.

Inuit was the first case where the CJEU was called to interpret the notion of ‘regulatory act’, a novelty introduced by the Lisbon Treaty. The case concerned the European Parliament and Council Regulation No. 1007/2009 on trade in seal products, which the applicants claimed to be a regulatory act. However, the General Court (order of 6 September 2011) was of the opposite opinion. It concluded that ‘regulatory act’ for the purposes of Article 263(4) TFEU must be understood as covering all acts of general application apart from legislative acts. It dismissed the action for annulment as it was lodged against regulation adopted through the legislative procedure.

Hoping, that the Court of Justice will decide to introduce a more flexible interpretation of ‘regulatory act’, Inuit Tapiriit Kanatami and other applicants brought an appeal against the order of the General Court. However, yesterday’s decision dashed all hope. The Court of Justice decided to follow Advocate’s General Kokott opinion (delivered on 17January 2013) and to stick to interpretation of ‘regulatory act’ presented by the General Court.

The Court firstly noted that it is apparent from the third limb of the Article 263(4) TFEU that its scope is more restricted than that of the concept of ‘acts’ used in the first and second limbs of the Article 263(4) TFEU, in respect of the characterisation of the other types of measures which natural and legal persons may seek to have annulled. Thus, according to the Court, ‘regulatory act’ cannot refer to all acts of general application but relates to a more restricted category of such acts. The Court of Justice supported the position of the General Court agreeing that legislative acts, which, although they may also be of general application, are not covered by the concept of ‘regulatory acts’, and, therefore, continue to be subject to more stringent admissibility rules (applicants must prove direct and individual concern).

Thus, it can now finally be stated that the case is solved and it is clear what types of acts are ‘regulatory acts’ and might be subject to less stringent standing rules. According to the jurisprudence of the CJEU, for an act to fall under the concept of ‘regulatory act’, it shall satisfy the following requirements:

–       It shall be an act of general application (not an individual act)

–       It shall be non-legislative. Whether an act is legislative or not is determined by the procedure which led to its adoption: legislative is an act adopted through legislative procedure (ordinary or special).

Considering such case law, the ‘floodgates’ were not opened and the possibilities for private applicants to challenge legislative acts remain extremely limited. On the other hand, the doors for challenging non-legislative acts after Lisbon Treaty became more open. Well, as one would say, you cannot get it all at once…

[i] Case C-583/11 P Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union. [2013] ECR II-0000.

[ii] Case T-18/10 Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union [2011] ECR I-00164.