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

From Play it again: the Popular Memory Archive

Orphaned work post updated in 2023 to repair links etc after Play It Again moved to a new domain name. Originally posted with permission.

During April the Play it again blog focuses 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.

Copyright law creates orphans

In the 1980s, the international consensus was that computer code should be protected by copyright law. Ppatent 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 realized 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 realized it or not, the copyright owner.

But sometimes contributors to computer magazines were required to assign their copyright to the magazine publisher. If this was done correctly (in writing) the publisher owned 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.

Nevertheless, no matter who now owns the copyright, the game itself is still protected by copyright in most instances. The term of protection is always linked with the lifetime of the original author.

Now it is 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 we may lose them if we don’t act now.

Infringing copyright to save historical games

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 Play It Again project is very familiar with the problems of trying to track down copyright owners of early games. Some were involved with the earlier NZTronix project which proposed to archive New Zealand’s earliest games for cultural heritage purposes.

For more information, see Orphan Works and The Law – is it an ass?

Play It Again talks pitfalls here.

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