Law and the game cloners
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As we have discovered, most early computer games are still protected by copyright and therefore they cannot be archived or made available online (even for not-for-profit purposes like the PlayitAgain project) without the consent of their copyright owners.
However copyright protection will not necessarily protect computer games from game cloners, who base their activities on the fundamental principle that copyright law has never protected an idea; it only protects the expression of an idea. If you are wondering what that means, then you are in good company!
The rationale for the principle is that ideas should be freely available to everyone. However, particularly since the introduction of copyright protection for movies, audio-visual works, computers and computer games, the courts have struggled with how to separate the idea which underlies a particular work (which is not protected by copyright), from its expression (which is protected by copyright). Court decisions are inconsistent- for example a series of frames creating the moving images in a film has been found to be protected by copyright, whereas a series of still images in a computer game which created an “illusion of movement” was ruled to be an idea and not protectable. Admittedly in the latter case the series of images was of a commonplace activity (a snooker game), but this has not always been the situation.
The games cloners tend to take advantage of this inconsistency and uncertainty and frequently copy the gameplay and storyline of another game producer’s successful creation. In effect the research, time, and funding that was expended in producing a game is exploited by the cloner who free-rides on the original game company’s work.
I would be interested to hear your thoughts on this. For example, would it be practicable to patent the underlying software in a game to protect it from the cloners?