Thanks to copyright maximalism, video game masterpieces are likely to be lost forever

Video games are undoubtedly an art form, arguably the quintessential art form of the late 20th and early 21st centuries. They combine graphics, video, music and interactive plotlines to produce a uniquely rich and complex creation only possible thanks to the widespread availability of powerful but low-cost systems like game consoles and personal computers. Clearly, such works of digital art deserve to be preserved for posterity alongside those in more familiar formats such as books, songs and films. Copyright, which is supposed to be for the benefit of creators, is likely to make that impossible. An article in The Washington Post explores why the preservation of video games is currently so hard.

So-called “technological protection measures” (TPM) – things like digital rights management (DRM) – are a key problem. Even though TPM systems are often technically easy to defeat, laws like the US Digital Millennium Copyright Act or the EU’s Information Society Directive can impose tough penalties on those who do.

Copyright’s legal overreach makes academics reluctant to risk transferring video game code from old media like floppy discs to new, more durable ones to make backups. It also stops them from creating software emulators of the hardware needed to run old games. As a result, even when copyright protection on a game expires – in a century or so – there is a risk that copies of old video games will be unplayable because the media on which they are stored has degraded, or there is no hardware available they can run on. In the US, there is a way around this problem, but it’s not being adopted because of resistance by the Entertainment Software Association (ESA), the industry body that lobbies on behalf of video game publishers:

In U.S. copyright law, exemptions exist for specific use cases, such as academic research, that would otherwise violate the technical protections of copyrighted works. Proposals for exemptions are reviewed every three years by the U.S. Copyright Office. In 2018, academics scored a victory that granted them an exemption to preserve games that are no longer commercially available. In 2021, a push for remote access to preserved games for academics failed.

In response to the push for copyright exemptions by the academics, the ESA has stated that increasing such access would “risk the possibility of substantial market harm” for publishers.

That’s absurd, because academics simply want to preserve the games for future generations, not sell them from the back of a van. The ESA’s obsession with controlling every possible use of video games ironically means that it is currently likely that in the long term, many masterpieces of the genre will not be preserved in a playable form, and the creativity of the industry will be lost forever. It’s another demonstration of the fact that copyright law is unable to operate properly in a world of digital rather than analogue artefacts.

Featured image by superanton.

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