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Historical reflections

Saving Private Gromit

Saving Private Gromit

Credit: David Anderson

This past March, I attended the "Westminster Media Forum Keynote Seminar: The state of playnext steps for the U.K. video games industry." The previous day the U.K. government had announced a series of tax breaks for the animations and games industry, and there was a real sense in the room that video games were finally taking their place in the cultural heritage landscape.

The emergence of games as cultural objects poses some interesting questions both for the industry and for government. There is an indisputable public interest argument for preserving for future generations those objects that we take to have cultural significance. Games, often dismissed as mere "entertainment," nevertheless speak to a very wide international audience and express something profound about the current zeitgeist. To that extent, at the very least, they are preservation-worthy. But what will preserving them involve, and who is going to pay the preservation piper?

An obvious suggestion is that games ought to be preserved by the libraries, archives, and museums that take responsibility for preserving, curating, interpreting, and making available to the general public the rest of our cultural heritage. The difficulty is that preservation is never for free and in the case of complex digital objects it can be very expensive. Indeed, the cost of migrating a game from one hardware platform to anotheran activity that might be necessary many times over the preservation lifespan of a digital objectmight easily cost as much in time and money as developing the game from scratch. This assumes, of course, that memory organizations have at their disposal people with the necessary skills to complete the task; this activity would need to be carried out on an industrial scale. These are difficult times, but even if they were not, there is every reason to believe finance ministers might find higher priorities on which to spend tax dollars than preserving Wallace & Gromit, Grand Theft Auto, Tomb Raider, and Pong.

Another significant limiting factor in memory organizations taking responsibility for preserving digital material is the series of obstacles resulting from the complicated and often contradictory legislative landscape under which preservation activity takes place. Of most immediate concern to preservationists is the national legislation under which they operate day to day. Different nation-states have their own laws and the understanding of key terms that prevails in one country often does not conform to that which holds elsewhere. In the U.K. context, attention needs to be given to the European Community framework law, which supersedes national legislation, and which, although meant to be incorporated into member state legislation, is neither uniformly or completely implemented across the whole of the EU. Here too, there is some disagreement over the interpretation of key terms. Finally, there is non-EU legislation, and international treaties and obligations such as the Paris Convention for the Protection of Industrial Property (1883), and the Berne Convention for the Protection of Literary and Artistic Works (1886), to consider.

Key legislation at the Community level includes:

  • Directive 2001/29/EC of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society (the "Information Society Directive").
  • Directive 2009/24/EC of April 23, 2009 on the legal protection of computer programs (Codified version replacing the abrogated Directive 91/250/EEC of May 14, 1991, known as the "Computer Programs Directive").
  • Directive 96/9/EC of March 11, 1996 on the legal protection of databases (the "Database Directive").

(Collectively referred to as the "Community Framework.")

  • Directive 2001/84/EC of the European Parliament and of the Council of September 27, 2001 on the resale right for the benefit of the author of an original work of art.
  • Directive 92/100/EEC of November 19, 1992 on rental right and lending.

Problematically for the anyone intending to preserve games, the Community Framework does not recognize the notion of multimedia works as a specific type of protected content, and no definition or specific framework related to multimedia works is available in EC law. Reproduction of multimedia works is addressed at the Community level through the various copyright and related rights directives as they apply to the constituent elements of a multimedia work: for example, software programs, databases, sound, and images. This is a pattern that is replicated in national legislation and in practice this means a distributive, fragmented approach is adopted, within which each component part of a multimedia work must be considered separately. Since multimedia works are not, in general, made available on computer platforms in such a way that individual elements can be removed from the whole, this means a multimedia work will effectively enjoy, as a whole, the strongest protection under law that is available for any of its constituent parts.

Taking a legally distributive (or cumulative) approach to multimedia works means each individual multimedia work a library or archive intends to preserve must be considered in order to determine the protection that it enjoys under the law, and what exemptions might apply. It is not legally safe to assume every game enjoys the same protection. As the law protects each element of the multimedia work separately, games with music will have a different legal character than those without, and so on. This makes it effectively impossible to carry out legal due diligence on the scale required.

European law grants libraries and archives no general right of reproduction but permits them to reproduce (or transfer) digital material only in certain specified cases. While the exemptions libraries enjoy are sufficient to permit some of the activities necessary for preservation, they fall far short of covering the full range required. There is a tendency for national legislation to be both more permissive than Community law, and for it to provide a greater degree of detailed governance. This flatters to deceive however, as national regulation is often simply incompatible with Community law, and is open to be overturned by anyone minded to press the point at the European level.

In view of the financial and legal difficulties inherent in public bodies attempting to preserve games, might it be possible to place this responsibility on the industry?

In view of the financial and legal difficulties inherent in public bodies attempting to preserve games, might it be possible to place this responsibility on the industry? This would have the immediate advantage of circumventing many of the difficulties outlined in this column. After all, copyright holders have the absolute legal right to preserve the material they own, and arguably have at their disposal better human and financial resources to undertake this task than do public bodies.

Games represent an important sector of the modern economy. In the U.K. alone, there are around 200 games studios, employing around 28,000 people and generating global sales of around $2.65 billion a year. The industry contributes approximately $623 million per annum to national GDP. However, this does not mean the games industry can be expected to bear the cost of games preservation. The success of the industry in securing fiscal concessions at a time of widespread austerity is evidence of the competitive imperatives in this industry, and bears testament to the effectiveness of their lobbyists. The barriers to entry in the games development domain are now so low, and the infrastructural requirements so minimal, that it is relatively simple for studios to set up for business anywhere in the world, or to relocate from one country to another in a way that is impossible for traditional "smokestack" industries. The industry is in the middle of a transition from selling relatively expensive games on shiny discs in shrink-wrapped packaging to providing inexpensively produced (and priced) content for download from the cloud. Not only is this shortening supply chains and undermining the business models of traditional companies, but it is leading to the emergence of new games studios that are smaller, leaner, and more dynamic than anything that has gone before. It also means that any government intending to pass onto the games industry the costs associated with preservation will not be in a strong position to impose its will.

It is not legally safe to assume every game enjoys the same protection. This makes it effectively impossible to carry out legal due diligence on the scale required.

There are a number of steps that can be taken on an international level that would do much to improve the prospects of ensuring games preservation in the public interest takes place without imposing undue burdens on government or the industry. The final report of the Blue Ribbon Task Force on Sustainable Digital Preservation sets out four key recommendations:

  • Leading cultural organizations should convene expert communities to address the selection and preservation needs of commercially owned cultural content and digital orphans.
  • Regulatory authorities should bring current requirements for mandatory copyright deposit into harmony with the demands of digital preservation and access.
  • Regulatory authorities should provide financial and other incentives to preserve privately held cultural content in the public interest.
  • Leading stewardship organizations should model and test mechanisms to ensure flexible long-term public-private partnerships that foster cooperative preservation of privately held materials in the public interest.

To this final recommendation, I would add the suggestion that the industry should be encouraged to make available as much information as possible on the hardware and software dependencies of their products. This is neither commercially sensitive nor difficult to provide at the time when software is released. It is, however, absolutely vital in ensuring long-term access to preserved digital material, and becomes increasingly difficult to uncover over time. It would be possible to seamlessly incorporate harvesting this information along with the details the industry already provides to age rating agencies such as PEGI.

Announcing the games and animation industry tax breaks, U.K. Finance minister George Osbourne told Parliament it was his intention to keep Wallace & Gromit exactly where they are. With the proper level of cooperation between the industry and government it should be possible to save Wallace & Gromit, Laura Croft (and the rest) for future generations.

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David Anderson ( is the CiTECH Research Centre Director at the School of Creative Technologies, University of Portsmouth, U.K.

Copyright held by author.

The Digital Library is published by the Association for Computing Machinery. Copyright © 2012 ACM, Inc.


Holger Kienle

The article raises important points, but in my view an even more important areas for consideration are virtual worlds and MMORPGs because they are constituting rich virtual societies and cultures (which is arguably less the case for classical single-player, off-line games). Also, these systems run on highly distributed software/hardware platforms which makes preservation even more challenging, both technically and legally.

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