The Copyright Conundrum: The Case for Shortening the Length of Video Game Copyright

The Copyright Conundrum: The Case for Shortening the Length of Video Game Copyright

When you’ve been around games for some years (or even decades), you start to wonder whatever happened to some of those classic games you vaguely remember playing years ago instead of doing your homework or going outside and enjoying the sunshine like your parents wanted you to.

Some of those games live on as fond memories, while a few others have been resurrected or re-booted/ For most of us, however, the majority of old games however, have simply been left in the past as vague memories of “that game with the helicopter in the desert” or “the one with the robot” or “was that the platformer with the orb?”

But what if it didn’t necessarily have to be that way?

I warn you now: This is going to be a long read, so if you want to make a cuppa, feed the cat, make sure the kids aren’t painting murals on the wallpaper or maybe put the washing on, go right ahead. I’ll wait here.

OK, ready? Great. Having managed to wrest control of the metaphorical microphone from Player 2’s esteemed editor, I’d like to talk about copyright term lengths as they relate to computer games.

Let’s start with a straightforward fact: A video game published nowadays will have a copyright term of 70 years.

Think about that for a moment. It’s quite possible Offworld Trading Company will still be under copyright in an era when we literally have Martian colonies.

Great, many people will say. It’s a good game and the creators deserve to profit from it. And broadly speaking, I agree. The question is: For how long should the creators of a computer game deserve to potentially profit from it?

Another fact: Pretty much every computer game ever created is still technically under copyright. Atari 2600 games. Commodore 64 games. Zork-like text adventures. Obscure Master System games that only got a release in Japan. Someone somewhere owns the copyright to them – and by extension controls whether or not the game is still available, re-released, or updated.

Sometimes we get lucky and the company which acquired the rights from the company which acquired the rights from the company which got the rights from the publisher who got the rights from the guy who made the game back when Duran Duran were still releasing new songs decides to do something really worthwhile with the IP.

The Copyright Conundrum: The Case for Shortening the Length of Video Game Copyright

Some of the best examples are Firaxis remaking UFO: Enemy Unknown and bringing us the incredible XCOM and XCOM 2, Bethesda managing to do great things with the Fallout licence and Wargaming making an excellent version of Master of Orion.

However, more realistically, many old games end up simply fading into obscurity or becoming abandonware, in a weird legal limbo where technically they’re under copyright but no-one is completely sure who has the rights (or the entity which has the rights simply doesn’t care about the IP and has essentially forgotten or abandoned it).

Countless classic games that were highly regarded in the 80s and 90s – Populous, Battle Chess, Interstate ’76 – have essentially ended up in the IP equivalent of that big warehouse at the end of Raiders of the Lost Ark because either no-one is quite sure who actually owns them now, or the people that do own them don’t see any financial benefit in doing anything with a 20+-year-old IP. Disney, for example, own the LucasArts back catalogue but I doubt we’ll be seeing Outlaws II or Full Throttle: Turbocharged anytime soon.

So here’s my call: Copyrights on entertainment software titles should last for 25 years from the year of publication before the IP on that title reverts to the public domain.

What this means is that if you want to take the original Sonic The Hedgehog and re-make it, download it, or play via emulator on your PC, you’d legally be in the clear since the copyright on that title had lapsed. What you wouldn’t be able to do is come up with your own new Sonic adventure, or use elements of newer Sonic titles, on account of how Sega still make Sonic games and still have the character as an active part of their intellectual property holdings.

Bear in mind under my proposal, there’s still 25 years of the developer/publisher having the rights to a game they’ve made, exactly as they do now – nothing at all would change in that regard – so they’re still going to be getting an income, making sales, and all the other things that are essential to any creative industry.

The Copyright Conundrum: The Case for Shortening the Length of Video Game Copyright

The difference is, after two and a half decades, the game becomes freely available for everyone – by which point it will have long ceased to be making any money for the publisher anyway.

I would suggest a good example of how letting old games into the public domain could potentially benefit gaming culture overall is the currently non-existent Half-Life 2: Episode 3.

It’s been 11 years since Episode 2 left us wondering  about the mystery of the vanished Antarctic research ship Borealis and Valve have shown pretty much no concrete signs of finishing the story (especially now the lead writers have all moved on) so there’s a lot to be said, in my opinion, for giving fans the chance (in a few years, of course) to finish the story for themselves without potentially getting sued into oblivion by the owners of an IP that has been dormant for more than a decade.

Or how about Lionhead’s 2005 game The Movies, the only game of its type ever released – a combination of movie studio building and business simulator, along with a hugely powerful machinima element in which you literally made the movies your studio was producing? It’s not on, no-one has ever made a sequel (or indeed a game on the same idea), it was pulled off Steam many years ago when Activision lost the rights to Lionhead’s back catalogue which has, I understand, been acquired by Microsoft at some point, and it is also currently effectively in that electronic Raiders Of The Lost Ark warehouse I mentioned earlier.

How is that a good outcome for gaming? No-one is making any money off those games – so what, exactly is being protected by maintaining copyright on decades old and otherwise unobtainable games or dormant IPs?

Before I go any further – and before you head off to Bunnings to ask about bulk-buy discounts on pitchforks and burning torches – let me state clearly, unequivocally and in the largest, friendliest letters possible:

I support copyright on video games, I do not endorse or advocate video game piracy, and the video game industry is full of extremely hard-working, talented people who deserve to get paid for the work they do making the games we all enjoy so much.

The Copyright Conundrum: The Case for Shortening the Length of Video Game Copyright

With that out of the way, let me ask you a question:

Are you still working in the same job you had 25 years ago?

I’m willing to bet the answer is “No” – and if you haven’t been in the workforce 25 years, how many times have you changed jobs since you started? Statistically speaking it’s quite a few.

The people who make video games at large studios tend to get paid a salary, but the copyright ownership typically vests with the developer (or publisher). In other words, the character designer for Crusader: No Remorse almost certainly isn’t getting a royalty cheque every time someone buys the game on and the storyboard artist for Halo probably doesn’t hear a small “Ka-ching!” noise from their banking app every time someone on a nostalgia trip picks up a copy from the Xbox Store.

Those people got paid years ago when they made the game, they possibly got a bonus when the game hit a certain sales mark, and naturally being associated with a successful title meant promotions, pay rises, better contracts for future projects, that sort of thing. But otherwise, they’re achievements on the CV, trophies on the mantelpiece, and kudos within the industry. They’re not ongoing sources of income.

You may also have noticed those games I mentioned just before are really old and pretty much no-one plays them anymore – and that’s my point. They’ve made all the money they’re realistically going to make (with a small trickle coming in from retro/nostalgia purchases via outlets like No-one’s kids will starve because Desert Strike no longer generates royalties. No-one’s mortgage is going unpaid because Red Baron 3D sales have all but completely tapered off.

The other thing to keep in mind is that unlike books, movies, or songs, video games have a more ephemeral quality about them. Without looking it up, can you name the BAFTA Best Game winner for 2015?

It was Destiny, as it happened – a game that has now been well and truly supplanted by its sequel, Destiny 2.

The Copyright Conundrum: The Case for Shortening the Length of Video Game Copyright

I’m not for a moment saying “Well since Destiny 2 is out, it should be open season on Destiny now” – just pointing out it’s patently ridiculous a game which has already been supplanted by its own sequel three years after publication will still be copyrighted until 2084.

To look at it another way: Movies from right back to the 1920s are still hugely popular and profitable. Huge numbers of people are still watching Jaws, Star Wars, Back To The Future, Raiders of the Lost Ark, Aliens, Goldfinger, Citizen Kane, The Maltese Falcon… you get the idea.

The ideas, the themes, the enjoyment viewers derive from those works remains unchanged and strong, decades after they were released – partly because the medium (watching moving pictures) hasn’t changed, while games continue to develop and evolve. Control systems that seem second nature now are often missing from games from as recently as 10 years ago, and then you’ve got the frankly terrible graphics by modern standards on older games.

And outside of dedicated retro gaming enthusiasts or people on a serious nostalgia kick, that’s one of the big reason old games aren’t generally played that much anymore: A lot of them just aren’t that great by modern standards.

Lest you start developing plans for an Inquisition against anyone who might doubt the excellence of Super Mario Bros or Super Street Fighter II or Dune: The Battle for Arrakis, let’s remember those games are remembered for being amazing and groundbreaking and ahead of their time.

If you look at a lot of the games included with the retro system bundles like the C64 Mini and the ATGames Mega Drive, there are some real classics there (the Sonic and Mortal Kombat games on the Mega Drive, Impossible Mission I & II and California Games on the C64 Mini), but there are also quite a few omissions because the rights weren’t available or were just too expensive – despite the games having been out of commission since the 1990s.

While movie making techniques have changed and evolved (compare 1902’s Le Voyage Dans La Lune with the mind-blowing 3D experience that was Avatar, for example) the broad mechanics of storytelling, plot, pacing and acting haven’t changed greatly in a long time.

Despite being made in 1941, Citizen Kane is legitimately a good movie even today. Star Wars is more than 40 years old but anyone who suggests it’s dated badly or isn’t very good may likely find themselves bundled out the nearest airlock.

However, computer gaming has changed and evolved incredibly in just a few short years – even something like the OG Tomb Raider (1996) is a visual eyesore by modern gaming standards – and things which were groundbreaking at the time (like the original Doom) are now seen as quaint, even bordering on primitive in some cases.

Given the gaming industry’s model of having sequels supplant and replace, rather than complement the original title (as in film), I would suggest no developer or publisher seriously expects to be getting royalty cheques for a game seven decades after its release.

The Copyright Conundrum: The Case for Shortening the Length of Video Game Copyright

Realistically, if they’re still getting useful money from a game 10 years after its release they’ll be doing extraordinarily well, and it is staggeringly unlikely a standalone game is still generating anything more than coffee money 15 years later. After 25 years the postage stamps on the royalty cheques are probably worth more than the royalties. In other words, the gaming industry isn’t going to collapse overnight due to lack of money as a result of copyrights being shortened.

An alternative suggestion, which I’ve saved to the end to see who actually reads this far and didn’t just read the headline before commenting on social media, is that in the meantime, all video games made before a certain date (say, January 1, 2001) could be declared to be in the public domain.

That way, the multimillion-dollar Triple-A titles the industry depends on can still be made under the “existing” system (at least while Serious Discussions are had about introducing shorter copyright terms on video games), while all those games from decades ago that are now abandonware or simply thought to have done their dash can have a new life made possible by fans, other developers and anyone else who wants to take them in new and interesting directions.

After all, isn’t more gaming content ultimately good for everyone?

TLDR: Copyright terms on computer games are too long and should be capped at 25 years. This gives developers and publishers a chance to make recoup their investment and make a nice profit but enriches gaming society and culture – and by extension society and culture generally – further.

The Copyright Conundrum: The Case for Shortening the Length of Video Game Copyright

Royce Wilson

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