Shorter Copyright Terms for Entertainment Software?

Great Debates
1

I was reading up recently on Duke Nukem Forever, a first-person shooter game instalment in a popular late '80s-early '90s franchise.

The game has been in development since 1997(!) and is, for all intents and purposes, cancelled, especially now that the company making it has collapsed.

Anyway, there’s also a growing interest in “Retro” gaming (Loosely defined as “Games from before the 21st century”, with a focus on stuff from the '80s and '90s) but due to the games being “Out of Print” and/or the companies making them no longer existing (or incorporated into a larger company that’s probably forgotten they own the old company that made that relatively popular game back in 1992). And I’m sure most of the older gamers here recall fondly titles from their youth that they wish someone made a sequel to or updated, after all.

So, what I was thinking was that perhaps Copyright terms for Entertainment Software should be greatly reduced from the “Essentially Forever” situation we have now down to something more “Reasonable” like 15-20 years.

Now, the thing is, that’s a loooong time in technology years. 15 years ago puts us back in 1995, where computers had RAM measured in two-digit Megabyte denominators (maybe three if you were lucky), CD-ROMs had introduced the idea of “Full Motion Video” and “Orchestral Soundtracks” to games in a big way, and a 17" monitor was huge and about the size of a television set because it was essentially the same thing. We’ve come a long way.

The thing is, a game made 15 or 20 years ago is- as a general rule- of virtually no economic value today. Compare Half-Life 2 to the original Wolfenstein 3D, for example and note the differences in gameplay, technology, storytelling, etc. It’s almost like comparing a Medieval Tapestry with a Renaissance Painting, so to speak.

Whilst it would be nice to extend these hypothetical shortened copyright terms to entire franchises (Say, if a proper, genuine, not-rushed-to-meet-a-legal-requirement Jagged Alliance game wasn’t released by 2015, all the games and characters in the series would become public domain), but that’s patently (excuse the pun) unworkable and likely counter-productive, but I do think a Thunderball-esque situation would be viable- after (say) 15 years, an individual title could be remade by other people, provided they followed the original story and characters closely and with the same context.

This would allow older games to be professionally “Re-made” using modern technology and developments (Imagine a modern X-Wing game!), but still protecting the original developer’s investment to ensure that new games get made. After all, I doubt that it really matters to anyone anymore if someone decided to remake the original Duke Nukem, for example.

I’m sure the issue has been debated here before, but I thought it would make a nice, non-Political Debate… so, here we are. :slight_smile:

2

Maybe Daikatana could be remade as the mindblowing game experience it was supposed to be.

3

I do think that copyright law in general needs to be relaxed; it is having the opposite effect it was intended to have. It is preventing instead of encouraging the spread & reproduction of art and software and such because it lasts so long and is so restrictive.

Shortening the length it last for software is an idea. Another idea that I’ve thought might be good is some sort of “use it or lose it” addition to the law; a lot of old games and music and such are unavailable because the copyright owner is just sitting on the copyright. Copyright is supposed to give people an incentive to create and spread such things; not to keep them inaccessible.

4

That’s no longer a correct assumption. Commercial digital distribution seems to be the key element that was necessary for profitable re-releases of classic titles. For example, Nintendo’s still making money off of NES games – kind of surprising given that the system itself ran from '85 to '95 in the U.S.

5

Unfortunately copyright law is intricately involved with politics. The constitution outlines the purpose of copyrights -

Over time, Disney and other major players have used political clout to change the meaning of the copyright clause to promote getting as much money as possible to near perpetuity. Court decisions on this topic have been a joke.

The fact that you are able to make money many years after designing a game should have no bearing on the initial copyright. How many of those developers in the 80s thought, “I would like to make money in 2013 off of my intellectual property. Therefore I will write a game to accomplish this task.”? They would have made the game regardless of their ability to earn money now off of it, and allowing copyright to extend this long goes against the original meaning of copyright - to promote the progress of science and useful arts.

Copyright law has become a joke. It should protect people who are interested in putting their talents to use and improving the general arts. It is not about money. The desire to earn money is a large part of wanting to promote arts, and I recognize the need for a certain amount of time to secure that pursuit. However, there should be a limit, and the present “limits” stifle rather than promote the arts. 10 years seems to be a good time period. After that, public domain. Trademark law still protects your name should those issues arise.

6

Yes, this pisses me off to no end.

I WANT A REAL STAR CONTROL 3!!!

Plus, I know for a fact there is a market for old NES and SNES games, given the amount of people I know who download those emulators. Square Enix routinely remakes their older Final Fantasy games, I have like 4 versions of Final Fantasy I and 3 of Final Fantasy IV.

Give me a DVD with maybe 50 old NES games that run perfectly and I’ll pay money for it. Otherwise, sit in your skull thrones, Nintendo, while I download your games for free :mad:

7

Shortening the length of copyrights, though arguably desirable, doesn’t seem likely to happen. But what if some sort of compulsory license scheme was introduced for software? That would allow enthusiasts/entrepeneurs to use and distribute the dormant greats, and generate revenue for the copyright holders that they themselves wouldn’t have to work for. Everyone wins!

An example from my hobby: there was a genealogy program that was very popular among serious hobbyists/professional genealogists. The program changed hands a few times, and ultimately in the 1990s (IIRC) it was effectively left to die by the conglomerate that ended up with the rights. I would love to be able to resurrect that program, enhance it, and revive/republish it, while gladly paying royalties to the copyright holder. The practical problem is that the copyright holder has no interest in seeing the program revived (not that I think they are against the product per se, but being a large company with many products, they would just see it as a distraction). A compulsory license feature would work to everyone’s benefit, as far as I can see.

8

I think a compromise between the short-term-copyright and the long-term-copyright would be most appropriate: Say, an ironclad copyright for 15 years, upon which point the copyright must be defended and maintained on a regular basis like a trademark. And the defense would have to be an actual exercise of the copyright—i.e., re-publication—not just a cease-and-desist order. That would solve the problem of most of the abandonware out there (where the company no longer exists, and NO ONE knows who holds the copyright anymore), effectively making it public domain, yet allow the Nintendos of the world to re-release Super Mario Bros. as nostalgic emulation, and continue to make money off of their long-nurtured creations.

Of course, I doubt such legislation would ever happen. It’s not in the interest of many people besides nostalgic game players. I don’t think the entertainment software companies would want to invite ANY erosion of their current copyrights.

9

In my optimal world:

  1. a copyright would extend for the complete lifetime of the original creator, by which we mean a person, as long as that creator does not transfer or sell the copyright. If more than one person is involved in the creation of the item they must pick one to own the copyright, or sell the copyright to the group/corporation.

  2. The moment the ownership of a copyright is sold or transferred from the individual creator, copyright restarts with a 15 or 20 or 25 year limit (I’m willing to debate the length). Inheriting a copyright would count as such a transfer.

  3. The minute any product is made available for purchase, if it ever stops being available for purchase by the copyright holder for more than five continuous years, then their copyright protection against copies of the product ceases - with the caveat that for-profit sales are still required to pay the copyright holder a specific percentage of their profits on any sales of the product. I’d consider the details of this debt to be debatable, as long as it is maintained that profitless transfers of copies of the product would owe nothing to the copyright holder.

10

Nice post. Can I ask the reasoning behind this part? I am wondering why lifetime instead of a shorter time.

The question I am most getting at is what is your (or anyone) rationale for why we have copyright? Is it to protect economic interests, to promote arts and sciences, or something else?

11

I think the current copyright regime is about where the USSR was in the 1970s: appearing quite formidable, but with serious weaknesses, and with quite possibly similar expected lifetimes.

For one thing, the distinction between patent and copyright is increasingly arbitrary in a digital age. Why should one be for 20 years, and the other be for life plus 50 or more years?

For another, young people increasingly think the idea of long copyright terms is just plain absurd, and don’t like 'em. Copyright owners need at least a divided public to maintain the current laws; eventually the public won’t be much divided at all, and the present regime will come to a sudden end. That may be 20 years away yet, but it’s coming.

Finally, enforcement of copyright terms is going to require increasingly invasive and Big Brotherly monitoring to be able to succeed. That’ll turn off a lot of people who might otherwise tolerate it.

12

It’s because I’m a writer (unpublished), and am acutely aware of how strongly attached a person can get to their creations. It’s not about the money, it’s about protecting your creations from being defaced.

Let’s note that caveat 3 applies to personal copyrights as well - if you never publish it it’s yours for eternity (well, until you die), but if you start selling it and then stop, then in five years somebody else can start selling it for you or giving it away. If you don’t like that, don’t sell it.

13

Thanks. If copyright laws protected you for 20 years from creation, would that make you more or less likely to write than if they were for life? Or would the difference have no effect? Do you think only 20 years of protection would have a chilling effect on the writing industry?

14

I think that much of the writing industry is purely commercial, and so any chilling effect would be slight, but yes, I think that authors do take some comfort in the protections they percieve their works to enjoy and the anticipation of a removal of these protections would deter the release of works somewhat.

As for myself, I would still write (since I’m not doing it for profit anyway), but I would never even consider publishing if I knew it would become a dartboard in my lifetime.

15

Since the discussion is going broader than just video games on obsolete systems…

The thing to keep in mind about creative works—especially when you get into the realm of novels, etc.‚—is how hard it is to make a living off of it, and how few such novels, etc., will be significant commercial successes.

So, even as an individual creator, you may depend on one or two “home runs” to generate a good portion of your income, possibly for decades to come. The problem is, you (and everyone else) needs to generate all the other pop-flys and bunts, too.

The other part of this is that exploiting your rights in order to make money off of them can take a LONG time. You write a book? Great. Now, it might be 15 or 20 years—or more—before that book is finally made into a movie. Say your copyright has expired on the book by that time. Who is now making a mint off of reprints of your public-domain book to tie in with the movie? Publishing houses? B&N and Amazon? Wal-Mart? Maybe… but not you, the one person who came up with that idea in the first place. You might be working at Wal-Mart by that point, ringing up copies of the book you wrote and not seeing a dime.

When we’re talking about copyright protection nowadays, we’re not just talking about the Founders’ ideas of it as something that we hope will foster the arts and sciences. Rather, we’re talking about people’s perceptions of fairness.

When we hear of some aging artist (of any stripe) who is penniless, our heart goes out to him—especially if his work is extremely well known. This happens a lot in music, where many artists don’t own their publishing due to shady contracts, or in comics, where most artists have historically engaged in work-for-hire and don’t own a share in the characters, etc., that they invented for a company. Now imagine if this became the norm for ALL creative works. I think you’d see a new public outcry to help protect these now old and penniless creators, and give them their “fair share.” It’s true that Disney et al have distorted the copyright law for their own purposes, but I don’t think that lifetime rights are too far away from the public sense of what’s fair, one you get right down to it.

There’s also something of the American Dream in it: That someone, with just a good idea and some hard work, can become fabulously wealthy. And if you’re against that, then we all know that you’re really on the side of the terrorists. :wink:

16

This is the problem. Copyright is not about fairness. I am far from an originalist, but the constitution is very explicit about the purposes of copyright - to promote the progress of science and useful arts. It is not a tool to protect an individual’s ideas and a revenue stream. It is unfortunate that some do not make the money they wish they could in the marketplace, but perverting copyright to ensure everyone makes money off of their works is going to far.

17

How would you handle these issues?

So if a team of people write a program, or a band creates an albumn, one person will own the copyright? The rest of them are left with what?

At least in software, you have just defined a time period that is functionally forever. A 25 year old single handedly writes a piece of software, and then lived to the ripe old age of 90. Your copyright will now last from 80-90 years.

18

How does copyright promote the progress of science and useful arts? By keep the the creators thereof from being scared out of the industry by justified fears of unfair treatment. Literally, copyright is about fairness, originally speaking - it certainly never protected any monies that the creators didn’t think they had a fair claim to.

They’re left with a choice - hand the copyright to one person, or transfer the rights to a corporate ownershop under the 15/20/25 year limit. It’s a choice they’d have to make.

I’m aware that this could potentiall rob one of a duet of individual creators of the lifetime rights that I feel individual creators are owed, but I feel that it’s necessary to avoid abuses of the system one gets by allowing corporations equal ownership rights, or even simpler cheats like saying that your infant child was a co-author of your book. To avoid stuff like that, collectives don’t get lifetime rights. Sorry.

So what? They and their descendents still have to publish it continuously after the original release or it enters the public domain - after that you can give it away for free, or even sell it for your own profit if you mail the author(or his progeny) their cut.

There are two problems with copyright as it stands, in my opinion. 1) corporations can be eternal so things never end up in the public domain, and 2) copyrighted stuff can drop off the market and become completely unavailable until the copyright expires. The problem is not that people can’t steal from and profit from the author’s work in his lifetime.

19

My plan would be to make copyright for all works valid for the life of the artist + 18 years, or 50 years, whichever is the lesser. After 50 years, a 10-year extension could be purchased from the United States Government on a per-work basis, under the following schedule of fees:

First extension (takes it to 60 years total): $10,000
2nd extension (take it to 70 years total): $100,000
3rd extension: $1,000,000
4th extension: $10,000,000

…

and increase by an order of magnitude per decade. So if Disney really wants to lock up a 100 year-old “Steamboat Itchy” for 100 years, it’s going to cost them $111,110,000. Which goes to fund roads, schools, Obamacare III, the 2012 invasion of Venezuela, etc.

Furthermore, the above fee schedule will also be adjusted annually by the CPI, so extreme inflation cases can be handled as well.

It’s tempting to have computer software work on an accelerated schedule, but I’m not sure about singling it out as separate from the rest of the types of creative works.

20

Sounds all noble in theory. but what tends to actually happen is that your creation tends to just sit there indefinitely, unheard and unseen by anyone unwilling to break the law.

A relevant article: Over 70 percent of American music recorded before 1965 is not legally available in the United States.

How is your hypothetical creator going to get recognition or money from his work when it is forever unseen and unheard? When almost no one will ever be allowed to experience it?