“Abandonware”: A separate category to orphan works?
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Many copyright works – especially books – have a potentially lengthy commercial lifespan. Of course, longevity does not necessarily equate to commercial success, but the longer a work’s ‘shelf life’, the better the prospects for the owner. Strangely enough, a longer shelf life may also benefit the consumer – how else can we legally obtain copyright works if they are no longer sold?
Videogames are different to books in that their shelf life is typically very short. Even modern videogames are released, relegated to sales bins within a year or two, and barely available at retail stores after a decade. Try purchasing a PC game from the so-called “Golden Age” of videogames, the 1980s – even world-famous titles like Tetris (1984) or Prince of Persia (1989) are nearly/impossible to find in their original form! (‘Remakes’ of original games is a topic worthy of its own discussion.)
What this means is that, unlike books, which are reprinted in new typographical editions for decades, older videogames are at risk of being completely lost (if not forgotten) without the likes of the Play It Again Project. No one has ever struggled to purchase a copy of The Great Gatsby (1925), but try finding the 1980s videogames listed on this website.
Early videogame advocates have even coined a term for titles that are ‘out of print’ or no longer commercially available: “Abandonware”. The term sometimes overlaps with orphan works (those whose author cannot be located), but it’s also potentially broader (for example, we know who produced Tron (1982), but it’s not commercially available). Many titles therefore remain abandoned, even when the author or publisher is known – as a further illustration, major producer Sega has admitted that many favourite arcade games are not currently sold and cannot be re-coded for current systems because the original source code cannot be found.
In February 1997, Peter Ringering formed the original “Abandonware Ring”: a collection of websites celebrating, archiving, and sharing Abandonware. Eight months later, the Interactive Digital Software Association sent cease and desist letters to all websites within the Ring, leading to most being gutted of their content or shut down entirely. But an idea had been born, and many more Abandonware sites were established and exist to this day.
In New Zealand (and most countries), copying or sharing Abandonware without the copyright owner’s consent likely constitutes copyright infringement, just as copying of orphan works does. From a copyright owner’s perspective, there are clear arguments against a system that specifically recognises Abandonware – such as the potential for denying legitimate sales, including in the form of re-released titles or official emulation for those titles. This is especially true where the old Abandonware version meets gamer’s needs, and will detract from any modern remake or re-release.
However, the practical reality is that many Abandonware titles will never be made commercially available again. While they attract some nostalgic or historic value, they are unlikely to ever be re-released and even more unlikely to gain commercial success, particularly with modern gamers seeking new graphics, new mechanics, and, well, new games. Many games developers recognise this, and some (including the famous Tim Schaffer, co-designer of The Secret of Monkey Island (1990)) have even expressly sanctioned the concept of Abandonware.
Should our legal system recognise the concept of abandoned works (in addition to orphan works)? After all, the concept of ‘abandoning’ intellectual property rights is not foreign to us – patent and trade mark systems both require “working” or “use” of the registered patent or trade mark within a certain time period, or else risk being lost. Similarly, copyrights can be expressly abandoned or relinquished by the owner – but they do not actively require continued “working” or “use”.
Whether we adopt a standard of commercial abandonment or reasonable attempts to contact the copyright owner, some kind of change seems necessary. Without that change, a whole generation of relatively recent creations will likely perish or truly evaporate in the digital ether.
I find the argument for a continued use test compelling, particularly in relation to works where abandonment means they are going to be difficult to copy and preserve legally (such as is the case with digital games). It’s very useful to know that the categories of intellectual property which you point to — patents and trademarks — require ongoing use if they are not to be lost.
Thanks for the post.