The law – is it an ass?
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During April this blog will focus on the legal environment for computer games of the 1980s. This post explains why many early computer games are “orphan works”. (An orphan work is a work which is protected by copyright, but whose rights-owner, or owners, cannot be identified and/or located.) Orphan works cannot be used for purposes which are protected by copyright.
In the 1980s the international consensus was that computer code should be protected by copyright law (patent protection did not arise until much later). The term of copyright in the computer game lasts for the lifetime of its author and a further 50 years (now extended to 70 years in Australian copyright law). However, many amateur computer game writers may not have realised the implications of this.
In New Zealand, code was frequently written by teenage students who then sent their game code for publication in the popular computer magazines of the time. Copyright protection arises automatically, so the author of the game code was also, whether they realised it or not, the copyright owner. But sometimes contributors to the computer magazines were required to assign their copyright to the magazine publisher. If this was done correctly (in writing) the publisher would own the copyright. However if the author was under 18, (ie a minor in New Zealand law) an assignment of copyright may not have been binding on the minor.
Nevertheless, no matter who now owns the copyright, the game itself will still be protected by copyright in most instances, because the term of protection is always linked with the lifetime of the original author.
Of course it is now becoming crucial that the earliest computer games and other born digital entities are preserved for cultural heritage purposes, due to the physical deterioration of the hardware and the obsolescence of their original programs and platforms.
Making copies available on a website is an infringement of the copyright owner’s exclusive right to copy and to “make copies available to the public”, while digital archiving for effective preservation of a digital work, such as a game, requires many copies to be made over time, in order to ensure the copies are not stored on out-of-date platforms and remain in playable form etc.
The PlayitAgain project is very familiar with the problems of trying to track down copyright owners of early games. Some of of us were involved with the earlier NZTronix project which proposed to archive New Zealand’s earliest games for cultural heritage purposes. The following summary describes the research assistant’s attempts to track down copyright owners for the NZTronix team:
“The pilot study focused on three games: Dungeons Beneath Cairo written by David Harvey and published by Scorpion Software (sometimes also referred to as Flexisoft), City Lander written by John Perry and published by Grandstand Leisure Ltd, and Poker written by T.R. Spiers and published by Poseidon. The company we uncovered the most information about is Grandstand Leisure Ltd. Grandstand was the only company out of the three to register with the Companies Office. Neither Scorpion Software, Flexisoft, nor Poseidon was ever a registered company.
1. Grandstand Leisure Ltd The Companies Office was eventually able to provide us with details of the documentation that Grandstand filed with it over an 18 year period from February 1982, ending with Grandstand being automatically struck off in June 2000 for failing to file annual returns. There is no record of what happened to the assets, including any copyright Grandstand may have owned in the video game. The Companies Office provided the names of all the accountants and solicitors who acted for the company. However although they had acted for Grandstand, several of the accountants have now been bought out by larger accounting firms. On the occasion that I did manage to trace those who had represented Grandstand, no one was able to recall anything about the copyright. One or two of the accountants vaguely remembered acting for the company, but were unable to provide me with any other information. I was told that the usual time for keeping records for former clients is about seven years. After this time the records are destroyed. Despite being given some other names, I did not find any more information about Grandstand. Further emails and phone calls also failed to reveal anything else.
At present I am still awaiting confirmation of some of the details regarding a solicitor that according to Companies Office records acted for Grandstand. As none of the district law societies have even heard of the solicitor that is mentioned, I have been trying to confirm the name with the Companies Office. However, repeated phone calls to the office have not yet come up with anything. The former director of Grandstand cannot recall any paperwork or documentation regarding the games and who owns the copyright in them. He has suggested that we get in touch with another former director but that has proved impossible. Susan has been in touch with the author who wrote the game when he was 13, and remembered signing over his rights to the games at the time (this raises yet another issue – the enforceability under the Minors Contracts Act 1969 (NZ) of any contract to transfer a minor’s entitlement to copyright)
2. Scorpion Software/Flexisoft. As noted above this company was never registered, so information on it that is publicly available would be limited at best. Despite the former director having a relatively uncommon name, none of the persons found in the New Zealand phone book with that name was the right person.
3. Poseidon. This company also was not registered, meaning that there is limited information available on it. Internet searches have not come up with anything, and I could not find T R Spiers, the author of the game, Poker, in the New Zealand phone book or electoral rolls.
I have also contacted the New Zealand Computer Society at http://www.nzcs.org.nz/ . I have written a notice explaining the project and the games we are trying to archive and asking for any rights holders or persons having information about the games to get in touch. It will go in their next monthly newsletter.”
Evealyn O’Connor, NZTronix RA.
No responses were obtained to the insertion in the Computer Society’s newsletter. Since the copyright holders of the software could not be located, the plans to archive the earliest New Zealand software were abandoned. Despite this setback to the research project, the computer scientist members of the NZTronics team successfully worked with public domain and freeware games to develop ways of archiving software that would facilitate their use by the public on traditional platforms. Hence, while the technology is now available, due to the orphan works problem it cannot be used for cultural preservation purposes for the very software that is most at risk.
This post has explained the orphan works problem for computer games; the next posting will describe and evaluate some proposed “solutions” to the problem. In the meantime I look forward to your comments.
In my opinion, the Law is an ass in this case. Copyright ends 70 years after the death of the author, they have not taken into account that the original magnetic media (cassette or floppy) used to store the program and source has a practical life of around 30 years. So anything written to in 1980 has great trouble even being copied/backup today. If the author was 15 years old at the time (very common age of the early games authors in the 80’s) and they live to their 70’s and we than wait another 70 years, all we will find in the cassette case or floppy cover is crumpled plastic and dust ! Time is running out, software on these old media MUST be recovered now or all will be lost forever.
We at the MSPP (Microbee Software Preservation Project) have a Licence to distribute Applied Technology/Microbee Systems (now all owned by Microbee Technology Pty Ltd) software and documentation freely to members of the forum providing they agree to a disclaimer. So we have been busy preserving cassettes and floppies over the past few years with much to go. The real problem lies with software from other authors/ companies/ education departments/etc. A few we have located and most have thanked us for restoring their old programs as they threw them all out decades ago. Many have contacted us (after a Google search) asking for copies of their software written in the 80’s, most we have been able to help, some not.
We have some sophisticated equipment for reading (and writing) Microbee floppies but we are finding more and more of them being unable to be read without massive errors. Same with Cassette tapes.
So obviously the current Copyright Laws and those responsible for maintaining them have written them to protect the Authors rights but with zero thought on how to protect the media the authors works are on. The author can transfer his/her works to new media throughout their life time but once they died, thats it. We wait for another 70 years of media disintegration and loose the Authored works for ever. None of this makes for common sense to me.
I have mixed feelings about this. I have been voluntarily imaging some of the works of one of the companies mentioned in the Play It Again project. It is how copyright was meant to work – yes I am replicating the works, but I am doing it with their grace. Everything is fine where that contact can be established but unfortunately the law is black and white. Where that communication isn’t possible or is unrealistic, then things get complicated.
On one hand, the law is correct and justified for a 70+ year copyright. The author wrote it and only the author and their immediate family/company/whatever should benefit from any profits that may result from the works. If I wrote a fantasitic piece of software and then dropped dead, I would hope that those profits should continue onto spouses/siblings for basically the remainder of their lives (I guess that’s why it is 70 years). It would be wrong for somebody else to begin selling that work for their own benefit.
On the other hand, it is wrong that there seems to be no legal concept or process for orphaned/abandoned works. The onus is on the copyright holder to waive their copyright and if they are unable to, unwilling to, or not even aware of or have forgotten the works, then it falls into this “black hole” (although from a legal perspective it is not a black hole).
Now the black hole is there so that if somebody else decides to profit from the works, then the legitimate copyright holder has a comeback if they decide to pursue the matter. That makes sense and is just, but it assumes and only works in the case where the copyright holder actively exercises their rights.
Don’t forget that while I talk about profitting from works here, there is also a sort of legal inverse (ie. loss). If one breaches copyright, they may not necessarily profit from it, but they may deny the rightful copyright holder from their rightful profit. So if you publish the work online in an attempt to preserve it, then you are affecting the rightful holder.
It seems to me that the impossible is needed. The international concept of copyright needs to be refined. Obviously it needs to cater for all previous copyrightable concepts (books, films, methods, recipies, algorithms, theatre, art, music, etc) but also needs to cater for the:
1. human factor (don’t care attitude),
2. garbage factor (we create so many works),
3. aspect of technological changes and advancements.
It is almost as though Copyright should be a given at the time the works are created, but then refreshed/reclaimed at regular intervals by a rightful holder afterwards (what a world-wide administrative nightmare that would be).
Another workaround would be to keep copyright like it is now with 70+ years, but to have an exception after a certain period of time (10-15 years) on allowing works to be replicated for non-commercial reasons (this is probably a legal nightmare). In other words, providing exceptions for archival purposes.
The company I am imaging titles for is very grateful for my efforts and I’m stoked to be a part of preserving these titles from oblivion (doing my bit for the world). But I must admit that there is a tiny part of me that feels a little bit negative. This negativity isn’t really dissapointment, it is more like sorrow. How is it that the company didn’t think to preserve their heritage? Where they too busy trying to survive in the market? Was there no time for reflection? Did they simply not have the necessary skills or equipment? Did they have all the equipment and skills, but not the time nor reason to preserve? The same can questions can probably be asked of most companies, creators or copyright holders today. I think that ultimately, everybody is too busy looking forward.
Has every commercial film that ever existed been published to VHS, then to DVD, then to BD, then online. I doubt it – garbage factor (we create so many works that we don’t have the capacity to continously migrate all this historical information).
If you read this article carfefully, you would have noticed that a title could potentially be protected by copyright for something approaching 150 years (assuming it is a young author). This is approximately 400% longer than the entire age of the Personal Computer industry and in that time we have moved from hardcopy storage to cassette, then to floppy, then to another generation of floppy, then to a few generations of optical, then to virtual/online. On one hand, it’s great that the law attempts to cater for the unknown future. On the other hand, 400% longer – it can’t even cope with “recent” technology changes.
Our copyright laws have definitely taken some time to evolve. Part of the problem is that legislators are caught between a rock and a hard place – even for a topic one would consider relatively non-contentious, like orphan works, many rights holder organisations claim that the issue has been vastly exaggerated, while others (like Te Papa) continue to deal with the issue on a daily basis.
However, our current Copyright Act has also proven flexible. For this particular example, I’m wondering whether there is a potential solution sitting right before us. Here’s my reasoning:
Section 50 provides the following definition for “archive”: “Any collection of documents (within the meaning of section 2 of the Official Information Act 1982) of historical significance or public interest that is in the custody of and being maintained by a body, whether incorporated or unincorporated, that does not keep and maintain the collection for the purpose of deriving a profit”.
(In turn, section 2(b) of the Official Information Act defines document as including “any information recorded or stored by means of any tape-recorder, computer, or other device; and any material subsequently derived from information so recorded or stored”.)
Section 55(3) then provides that the archivist of an archive may make a digital copy of any item (the original item) in the collection of the archive without infringing copyright in any work included in the item if—
(a) the original item is at risk of loss, damage, or destruction; and
(b) the digital copy replaces the original item; and
(c) the original item is not accessible by members of the public after replacement by the digital copy except for purposes of research the nature of which requires or may benefit from access to the original item; and
(d) it is not reasonably practicable to purchase a copy of the original item.
So, copying IS permitted under limited circumstances. I’ll admit that the section needs some work – for example, why does the digital item have to replace the original? But, there is potentially some room here.
My final word is to let practical sensibilities drive projects like this. The consequences of being sued are high – but what are the practical risks? In New Zealand, very low! Copyright cases are few and far between – especially when it comes to archivists, public bodies, and non-profit organisations. What individual copyright owner would take legal action in a case like this? What corporate body, even? There simply seems to be no incentive for it – especially when the project is a celebration of work that acknowledges the author and seeks to protect his or her legacy.
Interesting. Same issues apply to TV and film although creators there were probably more attuned to record keeping during the 1980s 😉 In a recent round of changes to the Broadcasting Act, it was originally proposed that there be a full orphan works regime, but it was gutted on report back from the Select Committee. I look forward therefore to seeing the next post on “solutions”!
BTW, the copyright term in New Zealand for authored literary works (which includes computer programs) is life of author plus 50 years not life +70 (although the US proposals for the trans paciifc partnership agreement would have us agree to life +70).