Talking Point: Copyright and Video Games

What is stopping us from experiencing the entire history of video games?

Last year Taito issued Space Invaders Get Even on the WiiWare download service as well as multiple versions of the original game on the Japanese, PAL and North American Virtual Consoles. This was in celebration of the 30th annivesary of the release of Space Invaders in arcades worldwide. Similarly Namco is due to celebrate the 30th anniversary of Pac-Man next year with a new game release (which will hopefully also include arcade incarnations). In addition to making gamers like me feel old because we played these games when they were first released in the arcades 30 years ago, these anniversaries also give us pause. After all these are only two games out of hundreds from the 1980s which are currently not available to play on any console. What are the reasons for this and are there any remedies?

That older properties cannot be profitable is plainly not true. Nintendo has just announced arcade emulation via the VC in the form of the Virtual Console Arcade, and the appearance of properties from Namco and Tecmo imply that at least some publishers recognise this. Since the Japanese 8-bit and 16-bit consoles featured ports of arcade games as a primary software offering many classic games are available in their console incarnations in downloadable form from companies such as Konami, Taito and Nintendo themselves; it's also possible these games may see additional releases via the Virtual Console Arcade. This online method of distribution is considerably more profitable on a per unit basis than putting out a compilation disc would be (as Namco and SNK Playmore/Ignition have done) -- not to mention there's no disc mastering, pressing or packaging involved. Companies like Konami, Midway and Taito may simply not be interested in issuing a compilation of arcade games on disc and prefer a download model for distributing classic content.

The large video game companies of today have made many acquisitions along the way; usually to acquire one or two properites or even just a brand name. Activision and EA between them own a significant percentage of the 8-bit computer games from the 1980s due to their own titles and acquisitions of other companies, so you'd think we would see some content from them on the Virtual Console given the Commodore 64 is available on the service in both PAL territories and North America, but that isn't the case.

Part of the reason could be there's no one available to do the work of choosing titles for the service given their other publishing concerns, but a lot of it is likely down to rights issues. In many cases a game is developed by a different company from the publisher and depending on the contractural arrangements the publisher may have no rights other than the one-time publication of a title on a single platform. Unless the contracts surrounding the original publication of the title spell out these rights in detail any company which attempts to publish a title risks courting a lawsuit; given the age of many of these games just trying to contact anyone who might have rights to a game can be difficult. Even in the case of companies that had a significant presence in the arcade gaming scene it's not always clear who owns the intellectual property rights, so imagine trying to determine the rights disposition of a game made by a guy in his garage!

Let's also not forget that many games use licenses from other properties like books and films, so getting a game like Ducktales for the NES on the Virtual Console would require Capcom to renegotiate rights with Disney, which is pursuing the launching of their own internal software development studio. Of course since Capcom owns the code for the game, Disney wouldn't be able to publish the game without a licensing deal with Capcom. Anyone want to guess what the odds are on these giants getting together to make a 20+ year old NES game available for less than £4 a download? That's not to say that it could never happen. Certainly Disney might someday come to own Capcom, or Capcom could come to own Disney Interactive and associated rights that come with that, but as it stands there's little likelihood of this and other games based upon licenses held by other large parties ever seeing the light of day on the VC.

So what about games where it's not clear who has the rights and no rights holders can be contacted? Well speaking of the UK, current copyright law basically states that the owner of copyright owns publication rights, full stop and these rights are automatic and extend for the life of the creator plus 50 years. There's no explicit reference to "orphan works" -- that is works which are not currently being published -- so it's possible that publication could be made without penalty, but given that all games created 30 years ago would legally be eligible for copyright protection it would be a gamble no one would be willing to take given that all someone would need to do is file suit in court showing they owned the rights to that property.

So what can be done to remedy this situation? This time last year legislation was introduced in the USA (Orphaned Works Act 2008) to reduce penalties for rights infringement in cases where the infringer claimed to have made a legitimate attempt to determine the rights holder and was unable to or had no response to contact attempts. This never even went to a Congressional committee, probably because there was such a negative response from artists who perceived that their works could be used without permission immediately after publication (largely due to the fact that it's common practice to use photos and artworks in publication without giving credit to the artist) and the burden of registration would be placed upon the creator to register their copyright in databases owned by private (likely for-profit) entities.

Whilst this is a legitimate concern the motivation of such legislation is not simply about supporting the concerns of big business (though a reduction in penalties would benefit them disproportionately): scores of films have been lost from the first half of the 20th century due to neglect by film companies that didn't care for them. Now many films from the 1960s and 1970s are also at risk, however copyright issues cause difficulties, so organisations like the National Film Preservation Foundation in California are hoping for some kind of remedy soon before more films are lost forever. Video games can face a similar fate: much old code is contained on various magnetic media or ROM cards and subject to deterioration or loss. In recognition of this museums for video and computer games have come into existence with recent mention of one opening in New York state and another one being started in London. Whether or not you regard games as "art" they are definitely a part of modern culture and should be preserved for the future.

It might be time then to change the copyright laws to protect the public interest and to prevent properties from lying fallow due to rights holder reluctance or inability to publish -- after all published media is intended for viewing and use by the public; this is truer of no media more than video games. Some minimum time limit after which rights to an individual property lapse would ensure that properties not considered important enough by the current rights holder to keep available can be published freely by others. This would enable legal compilations of classic games where the present rights-holder cannot easily be determined and the preservation of the past for enjoyment by future generations. I personally don't regard publishing rights as sufficient cause not to be able to play a game in my or my child's lifetime.

The question is whether or not lawmakers are willing to tackle this issue head-on. Looking at recent legislation in the United States driven by large copyright holders like Disney, the trend has been to automatically extend copyright by longer and longer terms without any provision for orphaned works and little concern for libraries or the public interest. In the UK the recent Gowers Report for the review of copyright law has expressed sympathy for the idea of relaxing existing rules to enable copying of film and audio for private research and archive purposes as well as the notion of enabling the use of "orphan works;" it's not clear if video games fall under these recommendations, but it should. It's basically up to Parliament to make a decision to enact the recommendations and it might be worthwhile for gamers to contact their MPs to make their views known on the subject.

The debate needs to be framed to include all media and address concerns by creators who want to ensure their rights to control the distribution of their works are protected, but also assess what the public interest is in having access to works that have ceased publication. The biggest problem is that when orphaned works are discussed the only people regarded as having a legitimate right to infringement are researchers and archivists. Who is going to campaign for orphaned works legislation for the purpose of monetising idle IP?

My main interest as a gamer is in being able to play games that span the generations without having to take a trip to a museum, but this highlights how video games are a different form of copyrighted work than say a film or a piece of music. Those are media that can essentially be archived to a digital format once and then easily format-shifted. For games, either the code needs to be ported or a "virtual machine" created to run the code on different hardware, and due to the activities of video gaming enthsiasts and possibly big companies (anyone know if Nintendo's VC uses bespoke emulation software?) this is already the case. Ultimately due to competing interests in the larger world of media ownership and copyright law it may not be politically feasible to make some of these games available again.

Still all is not lost. Emulators exist in a quasi-legal world where their actual function of performing software emulation of various hardware platforms is okay, but using them to run code that ran on the hardware being emulated without permission is not. Looking at discussion surrounding the digital distribution of music and video files a future remedy could be some kind of pool or tax which pays rights holders to compensate for unauthorised distribution of intellectual property over the internet. It's possible that video games could be included in this. If that's the case then it could finally grant legal status to emulation and ROM distribution online. It wouldn't be the solution I would prefer to see, which is existing rights owners exercising their rights and publishing their old games on all current platforms, but it would at least make it easier for people to experience these old classics in some form as opposed to having them disappear completely.

Further reading

The History of Activision (Gamasutra)

National Film Preservation Foundation comments on the subject of Orphan Works (PDF)

Gower's summary (PDF)

Sponsored links by Taboola

From the web