John Walker’s editorial in Rock Paper Shotgun on “Why Games Should Enter The Public Domain” was going around my Twitter feed the other day, frequently coupled with Steve Gaynor’s response. And what I appreciate about both of them is the pragmatic tack that they take: I think that the U.S. Constitution has it right by saying that Congress has the power
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
The Constitution doesn’t present some sort of moral right for people to control how people use their works, it doesn’t make a facile comparison of copying/transforming works with taking physical objects, it instead gives a pragmatic choice: we want as much good stuff to be available as possible, so if limited monopolies are useful to that end, then let’s grant them, but only to the extent that they are useful to that end.
And yes, that word “available” is my editorializing: I don’t care about artistic/scientific progress in the abstract, I care about it to the extend that it enriches people’s lives. In particular, if two solutions lead to similar numbers and qualities of works created, then I’ll vote for the one that makes those works more easily accessible, with the public domain being the most obvious means to that end.
So, with that common ground in place: John Walker argues for a 20 year copyright for games, Steve Gaynor argues for longer than that, with the justification being that companies the incentive of windfall long-term successes to justify speculatively investing in new works. But he wants a shorter term of protection for the ideas themselves. His own example is System Shock: he wants the game itself to remain under copyright protection, but he still wants to make a sequel to it.
Or rather, System Shock is his example for reduced protection for ideas: his example for the benefits of copyright protection on works is the music he licensed for Gone Home. But when I look at that juxtaposition, I don’t support his recommendation. Because the thing is: that music is still available, and we have a relatively robust system for publishing music that leads to vast quantities of music staying in print. The exact opposite is the case for video games, however: the proportion of games still in print from 20 years ago pales in comparison. And System Shock is a perfect example: I recently replayed it, and I would have been perfectly happy to have paid somebody money for a new copy (preferably one that Just Works on my machine), but I was unable to do so.
And, to the extent that I buy Gaynor’s argument that games publishers need the incentives of the possibility of profiting from a work 20 years later, I think it leads to the opposite of what he recommends: I think it’s quite rare for individual games to be a significant source of profits 20 years later, but I don’t think it’s as rare for characters or series to be to be a significant source of profits 20 years later by spawning new games. (That situation is still hitting the lottery, but the odds and profits are both better.)
What I really hate is art being unavailable: I like the public domain more than most, but to me it’s just a means to an end, and if we can find other means to that end, great. Art can be unavailable (for new purchase through legal means) because it’s an orphan work, because too many people are involved in rights to it, or because rights-holders don’t want to make it available for resale: any solution should deal with all of those problems, and the third in particular is a much more serious issue for video games than for most other forms of media. Gaynor lists music as a success, but rights-holder who wants to make music available for sale just has to give, say, CD Baby or Bandcamp a few bucks and a few MP3s, and poof, it’s available. Whereas if Sega wants to make Shenmue available, it’s a whole other story: they have a version that runs on the Dreamcast, but selling that would do so little good as to be completely pointless for them, and porting the game to newer platforms would cost them time and money with very uncertain return.
So, faced with that, public domain seems like a pretty reasonable solution to me. But it’s hardly the only solution: compulsory licensing could work well too, for example. Just spouting ideas off of the top of my head: given that there are real costs in making a game available in new platforms, let other people take on those costs and share in the rewards, paying a royalty fee to the original rights-holder. And if nobody is willing to do that or if there’s no registered rights-holder, then let people redistribute it for free. That sounds to me like a clear win over letting works stay inaccessible through legal means in perpetuity, as is effectively the case in the United States today.
Also, we need to deal with the fact that, in the presence of the possibility of digital reproduction, any sort of copyright regime creates a world of lawbreakers: I’m not saying that we should throw up our hands and give up on copyright entirely (though I’m also not saying we shouldn’t!), but we should accept that copying a game or a book or an MP3 is a minor offense at best, and set the punishment accordingly. (Which would, I imagine, come back to another form of compulsory licensing.)
And really, we need to find solutions to these easier cases, because there are harder ones coming along: more and more games and art-forms are going to be server-based, and dealing with orphan works in that context is a lot more difficult.