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work, such as a game, requires many copies to be made over time, in order to ensure the copies are not stored on out-of-date platforms and remain in playable form etc.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.