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Games and the Public Domain
I respond to John Walker and Steve Gaynor's thoughts on games entering the public domain approximately twenty years post-release.
February 4, 2014
10 Min Read
Yesterday, John Walker over at RPS posted about his desire for games to enter the public domain twenty years or so after release:
Steve Gaynor (of Gone Home fame) wrote a great response which is worthy of your time:
I’d like to add a few points to this discussion.
Profiting from work in the public domain
Steve makes the point that profit from work > 20 years old is pretty vital to someone’s long-term career as an artist; I agree completely.
However, making something public domain does not mean that the original creator cannot go on profiting from it at all: John makes that point very strongly and he is completely correct. It would be good for this discussion if people actually listened to the point he was reiterating and didn’t stupidly attack him on false grounds. He did say that quite a few times, after all, just in case you weren't paying attention.
Now that’s established, let’s look at what could potentially happen...
- A game being PD wouldn’t affect the sales of that game on GoG (or equivalent) all that much
There would be an impact on sales but my general suspicion is that it wouldn’t be all that great. I don’t have much evidence for this: I’d suggest that it is somewhat equivalent to the current piracy situation around single-player only games but that’s mostly conjecture...and obviously highly debatable in its own right.
- However, it would affect licensing a great deal
A large amount of value vested in IP’s that persist meaningfully for longer than twenty years (and indeed in ones that don’t) stems from their potential to be licensed for new products.
So it’s revenue from new products that mostly help support the original creator, not revenue from the original work.
The creator would not, in any way, be able to profit from the license, because the characters, art, story and anything meaningful to do with the IP would be free for anyone to use. So there goes merchandise, movie adaptation, animation rights (yes I’ve just started watching Arrested Development, please ignore me)...and, especially, reboots.
We’re seeing a lot of classic game reboots at the moment: these would all happen without the original creators getting a dime, when that person was still alive, well and creating. That doesn't feel right, and it doesn't seem like it would make financial sense either.
Integrity of your IP matters, not just its monetary value
When something becomes public domain, anyone with any agenda can repurpose it. I would feel concerned if, in my lifetime, Frozen Synapse was turned into something used to promote ideals that don’t reflect our own: I’m sure Ian, the game’s designer and the one who originally conceived it, would feel even more strongly about that. I doubt we’d feel much better if that happened in our kids’ lifetimes either...so when does this become acceptable?
Think of the worst possible thing someone could do with work that you spent four years creating, then imagine you have no legal protection against that.
Most of us do not have experience dealing with big IP’s. The makers of Minecraft have to see rubbish, derivative junk products and scams which use their product’s name cropping up on a daily basis; they have to put in a huge amount of effort to stop this from happening while maintaining the rights of those who want to do genuine creative things with their game. Why are they suddenly not allowed to fight this battle after 20 years (or 25 years, or 30 years etc.)?
Creative work has a unique risk/reward paradigm which other forms of work do not share
I believe that there is a strong case for society treating creative work differently from other forms of endeavour.
I think John’s workman analogy is the weakest part of his argument and undermines his more interesting points, so I don’t want to dwell on it too much. I will add, though, that our hypothetical workman is building up a kind of value when he works which is inaccessible to a lone creator:
- The workman should, in a lot of cases, be able to earn promotion or increased salary simply by doing his job well over a long period
- He may, after a while, acquire enough knowledge about his trade to start his own business, or expand his current one. Growing a service business is significantly and inherently simpler than expanding a creative business. It’s Ian’s unique combination of talents and insanities that make our games the way they are; we can’t hire another one of him, nor can we clone him... Sure, we could hire another development team and expand that way, but please don’t try to tell me that’s like a plumbing company hiring another plumber.
For Ian and myself, something which has always attracted us to making games is that there is “no ceiling”. There is a very, very low chance that something will become a ridiculous hit and go on being a success for your entire lifetime. Again, this isn’t entirely about money, and I agree with John’s point that it’s facile to suggest that money is a prime motivator for creativity. A lot of that feeling - for it is mostly a feeling - is to do with the fact that nobody can ever take it away from you.
Publishers holding IP’s exclusively / creators not getting paid
This is a completely separate discussion in my eyes: briefly, I don’t think there is a “moral right” to be paid for work where you have consciously and knowingly signed up as work-for-hire and waived those rights.
Trying to fix this by enforcing a situation where nobody owns rights after a certain time is somewhat of a nuclear option and not an elegant solution to this particular problem; I don’t think conflating these issues is helpful.
Things that do need addressing
A world where IP holders can just sit on both an IP and a product for years and refuse to allow anyone access to it for no good reason is fairly silly. It would be nice if, perhaps, there were some means to force older games to be available in some form: perhaps they should have to be released for free (but not PD) if they are not commercially available in any way for a length of time?
We need better, clearer and wider application of Fair Use to allow free quotation and intertextuality without threat of legal action, facilitating things like sampling in music (which is a whole different kettle of fish). Not-for-profit fan work should be actively encouraged; repurposing of game footage and machinima should be more than just quasi-legal.
The “giving back to culture” idea that John mentions does appeal to me. I'm actually still thinking about this in the context of my own views - I don't have any real conclusions on how to facilitate this yet.
Rather helpfully, that brings me on to my final point...
Thoughts on discussion
This is a very emotional issue for people: John illustrated this at the start of his piece with the vehement reactions to his off-hand comment.
I’m personally utterly sick of big games industry topics like this one dissolving into ad hominem idiocy; I wish that everyone could grow up and focus on the actual issues involved.
I'll admit to having been annoyed by that initial comment as well: I thought it reflected views that were hopelessly different from my own.
But here is an instance where John has taken the time to expand his off-hand remark into a significant, thoughtful piece about a nuanced issue. We should respect him for that: it’s easy to just become more entrenched in your beliefs and leave the discussion when responses are combative; instead he’s actually done something that benefits everyone. In the course of his writing, he took me from just being a bit irked by something he said to fully engaging with his argument: much more interesting! Maybe I don't fully agree with everything he said, but he overtly stated that wasn't his main goal, so everyone's now happy, right?
Why aren't people praising and encouraging this instead of being defensive and stupid about it? If you can't explore the reasons for your own beliefs and just get increasingly tumescent with rage when challenged, that's a good indication that you're probably wrong.
I'd like less knee-jerking, more brain-thinking, please: I guess I’m a romantic as well.
Follow me on Twitter @mode7games
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