Lex Specialis(sima): Videogames and Technological Protection Measures in EU Copyright Law

Abstract

Article 1(2)(a) of the InfoSoc Directive and the CJEU’s decision in UsedSoft (C-128/11) make clear that the Software Directive is a lex specialis in relation to the former. In Grund (C-458/13), the question arose as to which of the two directives governs the circumvention and distribution of devices to circumvent technological protection measures used in “hybrid products” – works containing computer programs as well as multiple copyrighted audiovisual elements – such as videogames.

In its judgment in Nintendo v PC Box (C-355/12), the CJEU, despite the referral made by the Bundesgerichtshof in Grund, briefly addressed this question. Following Advocate General Sharpston’s opinion, the Court stated that the InfoSoc Directive, which confers a more generous protection to TPMs than the Software Directive, should govern TPMs used in videogames.

The article critically examines Advocate General Sharpston’s and the CJEU’s (implicit) understanding of the lex specialis doctrine. It argues that a more nuanced understanding of the doctrine is needed in order to aptly answer the question referred in Grund.

Keywords: copyright, EU copyright, CJEU, technological protection measures, videogames, software, Software Directive, InfoSoc Directive, lex specialis