We’ve probably all seen that little graph which was making the rounds last year, which showed that longer copyright terms—thought to protect authors and make them more money—can actually make authors LESS money by keeping legitimate works out of the marketplace. Techdirt has a fascinating case study up this week which illustrates how this happens.
The short version is that a company called Night Dive has made a business out of sourcing obsolete computer games, cleaning them up for modern devices and then releasing them for sale in today’s marketplace. This is not a shady operation, though—they do their legwork to track the game back to its rights holder, and they work out fair profit-sharing agreements. As a rights-holder, how could you lose? They will convert your game for you, release it, then send you the money, money which your obsolete game is currently not generating at all…
Techdirt’s Timothy Geigner explains the current fuss:
“Because the game was released in an age before digital document filing was in widespread use, the rights contracts and paperwork we’re talking about here are all literally paperwork. And, after communicating with Activision, Fox, and Warner Bros., the response from all three was to essentially state, “We don’t really know if we have any rights here, and we aren’t going to look for the paperwork to make sure, but if you make the game and it turns out we do have those rights you’ll be facing legal action from us.” Keep in mind, this was the response from all three publishers who would take legal action concerning rights all three couldn’t be bothered to determine if they even had…”
The result? Night Dive could not take the risk of legal action from a deep pocket who may (but, granted, may NOT) have the rights to a game that even if they did own it, they had no interest in actually producing and selling. So the game got shelved.
I know there have been many speculations on the best way to do copyright reform, and one of them was a return to the system whereby the rights must be renewed periodically, or lapse into the public domain. Such a system would ensure that if, for instance, the rights-holders to this game, really did care enough about it to protect it, they could. But it would also mean that in a case like this one, a not-caring rights-holder would not be able to block someone else from making an obsolete work available again.
Intellectual property rights aren’t just about making money. They’re also about control. The rights-holder has the power to say, “I don’t want this distributed” for whatever reason. Just because something was once available for sale doesn’t mean that customers have the right to continue buying it if the seller no longer wants it sold. One recent example is the game Flappy Birds, which the developer, Dong Nguyen, chose to remove from the market.
There can also be mercenary reasons for not wanting new copies of old intellectual property to be sold. If it was good, maybe it’d be unwanted competition. If it was bad, maybe it’d be reputation-diminishing; we all do things we later regret. Anyone seen “Song of the South” recently?
The rights-holder gets to decide whether or not the work can be reproduced. And that decision isn’t always about money.
But the issue here, Doug, is that nobody is sure who exactly the ‘rights-holder’ is. It could be any of three entertainment companies, but the paperwork which might determine which of them it is has not been digitized and is locked in a box somewhere. This is not ‘I, the rights-holder, want to exercise control over my intellectual property.’ This is ‘I may be the rights-holder and I may not be, but either way, I am going to stop you from producing this.’ That is a very different thing.
At least in the United States, the whole reason for Intellectual property is to promote publication so that the work will be ultimately usable by others to inspire the next generation of intellectual work. When you publish, you must accept that your control will only be for a limited time.
Even though I would favor the renewable copyright, it would not primarily be for the next generation to use other author’s work (e.g., Hulk vs Superman), but for archivists and historians to preserve works from loss (e.g., reproducing out of print books and magazines.). The idea that the next generation needs the public domain for inspiration is false. Unless, of course, you want to write stories for Star Trek: The Next Generation.