Editorial: Why Games Should Enter The Public Domain

A few days ago I inadvertently caused a bit of a fuss. In writing about GOG’s Time Machine sale, I expressed my two minds about the joy of older games being rescued from obscurity, and my desire that they be in the public domain. This led to some really superb discussion about the subject in the comments below, and indeed to a major developer on Twitter to call for me to be fired.

I wanted to expand on my thoughts, rather than leave them as a throwaway musing on a post about a website’s sale. But I also want to stress that these are my thoughts-in-process, and not those of RPS's hivemind. This isn’t a petition – it’s an exploration of my thoughts on the subject. Let’s keep that in mind as we decide whether I should indeed fire myself.

I said it frustrates me that games more than a couple of decades old aren’t entering the public domain. Twenty years was a fairly arbitrary number, one that seems to make sense in the context of games’ lives, but it could be twenty-five, thirty. It’s not the point here. My point was, and is, that I have a desire for artistic creations to more quickly (indeed, at all) be released into the public domain, after a significant period of time during which the creator can profit.

This annoyed a number of high profile names in the industry, leading to some suggesting that I don't want developers to get paid, be able to eat, and so on. As this isn't the case, I want to get into the subject far deeper.

So before we move on to the nuances of the argument, let’s get one thing out of the way: Expressing a desire for a game to enter the public domain, let’s say twenty years after publication, does not in any sense whatsoever suggest a desire for developers to not get paid. I resent having to type this. It’s a bit like finding yourself having to say that you’re not in favour of gruesomely starving children to death because you expressed a thought that they probably shouldn’t get to exclusively eat at McDonald's. What I am in fact saying is: “developers should get paid for the work they do, and then keep getting paid for the same bit of work, over and over and over for the next twenty years, even though they stopped doing any work related to it many years ago.” It’s not entirely apparent how the two sentiments are being confused.

Well, it is, actually - I’m being facetious. The two are being deliberately conflated by a contingent who find the possibility of cultural artifacts ever returning to the culture that spawned them to be so repellent that they must eliminate anything that treads even close to challenging what they see as their perpetual rights to profit from ancient work. (And let’s be clear here - creators are arguing for perpetual copyright here, far outreaching even the current grasp of the law.)

I think the best approach here is to address the most frequent questions directly:

People need a financial incentive to create. If you take that away, it will harm creativity.

I think this argument is so astronomically false that my hat flies clean off my head when I read it. It’s so ghastly, so gruesomely inaccurate, such a wretched perspective of humans - these wonderful creatures so extraordinarily bursting with creative potential - and it makes me want to weep. The idea that creativity is only feasible if there’s a financial reward is abundantly demonstrably false. For someone to make their living from creative pursuits relies on some sort of financial return, yes. Creativity is not dependent on its being one’s living. That’s enormously crucial to remember. But even when talking about those seeking to make their living, the notion that a finite stretch of time in which exclusive profits can be made doesn't prevent anyone from becoming a multi-millionaire from their work. An eventual transition to the public domain would in no sense take away the financial incentive to create.

And not only does an argument for a more imminent end to copyright periods than the current monstrosities like “life plus 70 years” not inhibit someone from making a living from their creative works, but it also doesn’t even mean they couldn’t continue making a living from the creative works they produced after the copyrights have expired - that’s the magic of Public Domain! They just then share the ability to profit from those works with others. I’m going to get into this far more deeply below.

While it might well stop Cliff Richard from being able to replace all the chandeliers in his mansions with money made from a song he recorded sixty years ago and hasn’t touched since, the potential of entry to the public domain is not going to make anyone poor. And I’m perfectly okay with Cliff's dusty decor, not least because at the time of his recording said song, he would have agreed to that song’s entering the public domain by now.

But why shouldn’t someone get to own their own ideas? They created them, after all.

This is where things get a bit philosophical/metaphysical. But it comes down to accepting that there is a material difference (literally) between a game and a table, a song and a car. One physically exists. The other doesn’t. One is a thing, the other is an idea. And ideas is what this is all about.

Everyone has experienced the dribble-chinned tedium of various copyright industries screeching, “BUT YOU WOULDN’T STEAL A CAR!”* at us, as we sit in the cinema to watch a film while being told about how it’s our fault that no one’s sitting in a cinema watching a film, or indeed as we sit back to enjoy our legally purchased DVD. The comparison is false. And it’s a false comparison that it’s very much in the interests of the copyright industries to have us conflate. No, I would no more steal a car than I would tolerate a company telling me that they had the exclusive rights to the idea of cars themselves. However, there are things I’m very happy to ‘steal’, like knowledge, inspiration, or good ideas. And it was until incredibly recently that amongst such things as knowledge, inspiration and good ideas were the likes of literature and music.

The war for minds waged by the copyright industries over the last one hundred years has been so gruesomely effective that now the very suggestion that ideas are not immediately comparable with physical objects is met with violent anger. In a world where everyone alive has been raised in a system where Disney can pick the laws, it is perhaps not surprising that such contrary notions are met with such fury. What was once perceived to be a gross abuse is now ferociously defended by those abused by it.

Sudden changes occurred at the turn of the last century, where once ideas that were shared by oral and aural traditions, or indeed in copied texts, were confined to pieces of plastic. A couple of generations later, and these confinements were accepted as the only possibility. Then the relatively recent ubiquity of the internet has suddenly revealed this to be as transient and ethereal as it always was. However, vast industries had been built up around this temporary imprisoning of ideas, and they’re not all that delighted about their reign coming to its natural end.

Copyright has come full circle. Introduced in the 17th century as a form of censorship, an attempt by the monarchy to prevent the new-fangled printing press from being able to easily disseminate Protestant information, it was after a couple of hundred years eventually fenced into something vaguely useful. It stood to defend a creator’s right to protect their creations for a limited period, before they re-entered the public domain. Based in an understanding that creations are not uniquely birthed from the mind of a single individual, but rather the results of a massive collective sharing of cultural ideas over thousands of years, it made sense for their creation to be set free again at a later date. Those who found a demand for their creations, when they applied this shared culture to their own projects, would therefore receive recompense, either through patronage, or through payment for sales and performance. And they could (and can) continue to do so in perpetuity. Only, after that agreed period of time (different lengths in different nations), they would no longer exclusively own rights to that idea.

But now copyright seeks to protect individuals, not ideas. In fact, its purpose is to restrict the free flowing of ideas, to prevent cultural exchange, for the profit of the few. Copyright itself is the threat to future creativity, attempting to artificially restrict that most human of actions: sharing ideas. It has returned to its origins, and exists as a form of censorship. Not a censorship many are willing to recognise as such, so successful and endemic is the international brainwashing by the copyright industries, but the censorship of ideas all the same.

So why shouldn’t someone get to own ideas like they own a table? Because ideas don’t exist in an ownable form, are born of the shared cultural mass of humanity, and you can’t rest a coffee mug on an idea.

But why shouldn’t someone be allowed to continue profiting from their idea for as long as they’re alive?

Putting aside that an embracing of the public domain does not prevent someone from profiting from their idea, my response to this question is: why should they?

What I’ve found interesting about asking this question of people is that I’ve yet to receive an answer. I’m either told it’s on me to explain why they shouldn’t, as if I hadn’t just spent thousands of words doing that, or I’m told that they just should. I’ve noticed a complete unwillingness for people to stop and engage with the question. Why should someone get to profit from something they did fifty years ago? In what other walk of life would we willingly accept this as just a given? If a policeman demanded that he continue to be paid for having arrested a particular criminal thirty-five years ago, he’d be told to leave the room and stop being so silly. “But the prisoner is still in prison!” he’d cry, as he left the police station, his pockets out-turned, not having done any other work in the thirty-five years since and bemused as to why he wasn’t living in a castle.

What about the electrician who fitted the lighting in your house. He requires a fee every time you switch the lights on. It's just the way things are. You have to pay it, because it's always been that way, since you can remember. How can he be expected to live off just fitting new lights to other houses? And the surgeon's royalties on that heart operation he did - that's the system. Why shouldn't he get paid every time you use it?

So why should a singer get to profit from a recording of his doing some work thirty-five years ago? The answer “because it’s his song” just isn’t good enough. It was PC Ironburns’ arrest. “But creating that song may have taken years!” PC Ironburns spent years investigating the crimes before he caught that pesky crim! The electrician had to study for years to become proficient enough to rig up lighting. The doctor spent seven years in medical school! Imagine if this system we wholly accept from creative industries were accepted elsewhere - the ensuing chaos would be extraordianry. Take Broussard's claim above, that "Creatives have a right to be paid indefinitely on their work", and switch out "Creatives" for any other job. "Dentists", "teachers", "librarians", "palaeontologists"... It starts to appear a little ludicrous.

The answer, "Because they should" just doesn't address the question. That instinctive response is one born of the capturing of culture by industry, bred into us from birth. To stop, shake it off, and approach the question anew takes considerable effort. But then once shaken, the light suddenly comes shining in.

Why do we, as people who likely make money by working a regular job and getting paid for the time we spend doing it, so vigorously defend this peculiar model that is the antithesis of our existence?

I can’t believe you’re arguing that developers shouldn’t be able to profit from their games.

My poor head. But yes, let’s bring this back to videogames. Games feel different from songs, even films, don’t they? They’re modern. They weren’t even a concept before copyright had so grotesquely morphed into its current form. The industry was born into a world where creators already assumed a life-long possession of their particular manipulation of the culture they’d received from others. It is, perhaps even more than film, music or literature, an industry that has grown up most at odds with the concept of the public domain. (Which anyone over the age of 30 will recognise as quite a grim irony, as they recall the days of public domain gaming in the early 90s.)

And unlike music, theatrical productions, or story, they never pre-existed in a plastic-free form. (We could of course argue about snakes & ladders, hopscotch and ‘it’, of course, but for the sake of simplicity, we won’t.) I accept that it’s perhaps a far bigger cultural shift to accept that the whizzy graphics and explosions are, when all is pulled apart, ethereal concepts, ideas of 1s and 0s bouncing off our retinas, as possible to hold in our hands as a memory of an aunt’s house. But as much as it may not instinctively feel like it, it remains entirely true.

But games, unlike some other creative pursuits, are often made by huge teams of people. While there may be a project lead, this isn’t like a book’s author. This is a company. People getting paid to do their job, to make a game. The rights to the game, the ownership, lies with the publisher that funds it, not the creatives who create it. When a 20, 30 year old game is still being charged for, not a single person who was involved in its creation is getting a dime.

When it is more like book with an author, an indie developer and their self-published project, then yes, there is a greater chance they’ll see the money. But then we return to the my larger, more significant argument: that after those decades of getting paid for it, it’s time to return it to culture.

But people who work deserve to get paid.

I’m being as patient as possible. And this is where reasonable copyright laws to protect creative pursuits can step in. Agreed standards within the culture from which the ideas were born where we bestow financial worth upon the action of a creator generating those creations. Because despite the question that is still bursting from some people’s minds about how I don’t want anyone to get paid, I ADORE to see creative people getting paid.

I even adore the idea of people getting paid for their work after copyrights have expired. Further, I absolutely believe that it is right and fair for anyone who works to make that public domain material available to me in a convenient form to be free to charge what they like for doing so. To those who interpreted my previous article as claim that GOG shouldn’t be able to charge for much older games, that’s entirely not the case. I’d just like GOG to be able to charge for their own work, and not to have to then include costs for the license they’re paying to whichever corporation owns the copyright on the game for which they had nothing to do with the creation.

You’re a hypocrite, because writing is a creative industry, and you don’t give all your writing away for free, and you get paid, and you’re ugly.

It’s polite to wait to find out if someone’s being hypocritical before calling them a hypocrite. However, despite there being little demand for videogame journalism written twenty years ago, and therefore not something I have to face too often, I do consider my older work to be in the public domain. I wrote for Future Publishing for about ten years, where my contract stated they had exclusive rights to the work for six months, and thereafter we shared rights to it in perpetuity. I have always immediately revoked any private rights to that Future work, and while I maintain the right to be recognised as the creator of the work, I’m delighted for anyone to use it in any fashion they see fit. If that person wanted to pay me for doing so, I’d be even further delighted. I believe in what I’m saying here.

So what do you want to see changed then, apart from developers not getting paid for their work?

There are very few cases of developers making their living from the profits of games made 20 years ago. Gaming, as a medium, has a far more rapid expiry date than music, film or any other of its contemporaries. Despite rich retro scenes, and dedicated emulator projects, getting an old game running at all can be quite the ordeal. Sites like GOG do a wonderful job of preserving old games and making them easy to run, but this doesn’t directly translate to astonishing sales that will keep the original developer in caviar-coated Jaguars for the rest of their lives - in fact, it’s phenomenally unlikely that a penny of most sales will reach the developers at all. Other sites dedicated to getting forgotten games working again - abandonware, as it’s known - are fiercely threatened and shut down not by the creatives who designed the games, but by the company that bought the company that merged with the company that had the IP rights. And if you don’t like 20 years, because that’s the mid-90s, and it feels too dangerously close, then make it 30 years. Make it a sensible length of time that ensures that developers are richly rewarded for their efforts, and then it is released into the cultural wild - people’s to share, copy, remix or add to their own peculiar retro project’s catalogue. People who are, you know, actually doing some work to make it playable.

And no, of course I don’t believe that gaming should be treated differently from other media. I believe other media should be rapidly reigned in to the same standards, before we see the cultural wells dry and crack.

But hey, here’s a thing: I don’t have any power. My saying this, my believing in returning creativity to the pool from which it came, doesn’t mean anyone has to. Shocking news. I have no delusions that writing all this out is going to spark a world-wide revolution in copyright law. Again, stunning revelations. But what I do hope is that some people, an odd few, might connect to this in some way, and see fit to opt to let their games enter the public domain. Or commit to publish their games with a promise that after a certain amount of time, they will do so. Even opt to publish their games under Creative Commons copyleft licenses, in order to maintain all the legal rights and protections they need, without stifling the cultural world from which they so richly drew.

I’m a romantic.

And just in case, let’s do this one more time: I love it so much when talented people get handsomely rewarded for their great creative work. It brings joy to my heart when I see stories of the likes of Garry Newman or Marcus Persson becoming fantastically wealthy in response to their brilliant creations. Little makes me smile more broadly in an average day at work than reading the indie developer who’s reporting their game’s sales mean they can give up their day job and focus on what they love.

Further, I would so enormously love to see a situation arise where we can see truly patron-led creative funding, where gaming communities put forward their money so that creatives producing truly wonderful gaming projects can do so without the need for commercial success.

I want money flowing toward those whose talents warrant it like we’ve never seen before. I want developers to get paid.

*I do also wonder if it can be the most effective campaign against people who do steal cars.

Further reading:

Nick Mailer's essential essay on IP and copyright.
Techdirt's piece on what should be, but isn't, in the public domain.
Boingboing's article on Naomi Novik's testimony to Congress on copyright and fair use.