Rock, Paper, Public Domain

John Walker, of Rock, Paper, Shotgun, recently wrote a very interesting (not to mention comprehensive) article entitled “Why Games Should Enter the Public Domain” on the place of Public Domain in the video game industry.[1] His argument is particularly interesting in that he goes even further than the standard pro-public domain and pro-creative commons attitudes of many gamers and consumers of digital media. He argues for a radical restructuring of how intellectual property rights are handled in this area, with a suggested strong reduction of the length and strength of intellectual property protection for creators. Furthermore, Walker does not simply write this from the standpoint of an ‘everything-should-be-free’, unrealistic consumer, but rather also as a man who has benefited economically from his own video game journalism. One of the key points to take away from Walker’s argument is that the lengthy protection currently afforded to most works in this industry do not in fact end up benefiting the “creators” themselves (a tricky group to pin down at the best of times, as the core development team can span from solo undertakings to the hundreds), but rather the large publishing and media giants who retain the rights to such games.

I said it frustrates me that games more than a couple of decades old aren’t entering the public domain. Twenty years was a fairly arbitrary number, one that seems to make sense in the context of games’ lives, but it could be twenty-five, thirty. It’s not the point here. My point was, and is, that I have a desire for artistic creations to more quickly (indeed, at all) be released into the public domain, after a significant period of time during which the creator can profit.

After making some earlier comments about wanting games to enter the public domain (“As someone who firmly believes in the public domain, and finds it instantly aggravating that games over 20 years old cost anything,”), Walker was criticised by many for supposedly suggesting that hard working developers should not be paid for their work. However, even a cursory reading of Walker’s earlier comments reveals that that is not by any means what he said; he simply argued that a more “reasonable” time period would probably suffice for creators to profit from their creations, and that in the fast moving, ever developing video game industry, no one reasonably needs to be profiting from a game they made 20 years ago.

He points out that in all creative pursuits the current copyright limit “monstrosities” like lifetime + 70 years simply is not necessary for an creator to make a livelihood, and that allowing something to enter the public domain does not meant that that creator cannot then build on that success and release further works or updated works. The argument is simply that being paid decades later for a creation on which you have done no work since then is a step too far in attempting to protect creators and incentivise the creation of artistic works.

While it might well stop Cliff Richard from being able to replace all the chandeliers in his mansions with money made from a song he recorded sixty years ago and hasn’t touched since, the potential of entry to the public domain is not going to make anyone poor. And I’m perfectly okay with Cliff’s dusty decor, not least because at the time of his recording said song, he would have agreed to that song’s entering the public domain by now.

He goes on to make a more amusing comparison of how paying someone for work they did 50 years ago would look in any other walk of life, but in doing so raises a very interesting point – why do we take it for granted that this should be the norm?

Why should someone get to profit from something they did fifty years ago? In what other walk of life would we willingly accept this as just a given? If a policeman demanded that he continue to be paid for having arrested a particular criminal thirty-five years ago, he’d be told to leave the room and stop being so silly. “But the prisoner is still in prison!” he’d cry, as he left the police station, his pockets out-turned, not having done any other work in the thirty-five years since and bemused as to why he wasn’t living in a castle.

What about the electrician who fitted the lighting in your house. He requires a fee every time you switch the lights on. It’s just the way things are. You have to pay it, because it’s always been that way, since you can remember. How can he be expected to live off just fitting new lights to other houses? And the surgeon’s royalties on that heart operation he did – that’s the system. Why shouldn’t he get paid every time you use it?

We have lived with the copyright system for so long now, that we do not even notice the incremental changes, almost always upwards,[2] towards longer protection limits and stronger, more restrictive rights, to the extent that what originally sought to protect an artists ability to make a livelihood from their work, has now become a system of selling the theoretical “rights” to works, derivative works, franchises, etc. to large publishers and media behemoths like Disney.

Copyright Terms

As mentioned in the opening, such titles nowadays very rarely remain the intellectual property of anyone who might be considered a “creator” or the original game. This is abundantly clear when you see the number of developers making a “spiritual successor” to their own game from years past (such as Brian Fargo rebooting Wasteland rather than Fallout, which he does not control the rights to), complete with new name and general concept, because the intellectual property rights to this work obviously no longer rests with them, or possibly never did, but rather by which ever firm directly or indirectly bought up those rights over the years. What’s worse are the creative minds who have to simply bemoan the fact that they cannot in fact finish, or even start, work on their newest idea or the newest game in a series, as the rights have been transferred to a company who either wilfully does not want this game made (they might have their own ideas for the franchise, á la Fallout), or, worse, they simply have no interest in the title, leaving it stagnate until such a time as they might deem fit to dust it off and try to squeeze some money out of it (more often than not through a clone of whatever game is popular at the time).

There are very few cases of developers making their living from the profits of games made 20 years ago. Gaming, as a medium, has a far more rapid expiry date than music, film or any other of its contemporaries. Despite rich retro scenes, and dedicated emulator projects, getting an old game running at all can be quite the ordeal. Sites like GOG do a wonderful job of preserving old games and making them easy to run, but this doesn’t directly translate to astonishing sales that will keep the original developer in caviar-coated Jaguars for the rest of their lives – in fact, it’s phenomenally unlikely that a penny of most sales will reach the developers at all. Other sites dedicated to getting forgotten games working again – abandonware, as it’s known – are fiercely threatened and shut down not by the creatives who designed the games, but by the company that bought the company that merged with the company that had the IP rights. And if you don’t like 20 years, because that’s the mid-90s, and it feels too dangerously close, then make it 30 years. Make it a sensible length of time that ensures that developers are richly rewarded for their efforts, and then it is released into the cultural wild – people’s to share, copy, remix or add to their own peculiar retro project’s catalogue. People who are, you know, actually doing some work to make it playable.

And no, of course I don’t believe that gaming should be treated differently from other media. I believe other media should be rapidly reigned in to the same standards, before we see the cultural wells dry and crack.

While I can only begin to outline a small number of the points made by Walker in this article, I highly recommend reading it in its entirety, as it is one of the best examples of thoughtful reflection on the extreme lengths to whcih our copyright system has been stretched that I have come across.

~ Shane

[1] John Walker, “Why Games Should Enter the Public Domain“, Rock Paper, Shotgun, available at  http://www.rockpapershotgun.com/2014/02/03/editorial-why-games-should-enter-the-public-domain/

[2] Association of Research Libraries, Copyright Timeline: A History of Copyright in the United States, available at http://www.arl.org/focus-areas/copyright-ip/2486-copyright-timeline 

Photo Credit: eflon via photopin cc

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