Orphaned work: Susan Corbett asks “Is the law an ass?”

From Play it again: the Popular Memory Archive

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work, such as a game, requires many copies to be made over time, in order to ensure the copies are not stored on out-of-date platforms and remain in playable form etc.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

To finish reading this article, go to Play it again The Law – is it an ass

Republished with permission.