Popular orphan computer games cause copyright complications

Robert Grandia, a Dutch ICT lawyer, describes the popularity of old computer games in an article in the Dutch magazine ‘Automatiseringsgids’, and emphasis the complications of rereleasing these games into the market. Based on copyright law, consent has to be granted from the copyright holders for rereleasing a copyright protected game. However, in case of old games quite often the right holder is difficult to trace or might not exist anymore. In that case, we speak of “orphan computer games”.
 
Based on the Dutch Copyright Act (DCA), rereleasing an old computer game is yet another disclosure and reproduction. These are exclusive rights of the copyright holder, and need his/her consent. In case the game contains music, design, texts, characters and images, it might be possible there are more right holders, because all these elements can be copyright protected. Then, all the right holders have to give their consent. Sometimes, the company who launched the game on the market is the right holder, because the original right holder has assigned his copyrights to the company (similar to the situation where a publisher acquires the copyrights of the author of a book, due to the transfer of copyrights).

When a game has been released a long time ago, it is difficult to trace the right holder. According to the Dutch Copyright Act, copyright arises without any formalities such as registration, which make it even more difficult to trace the copyright holder. On top of that, a copyright protected work such as a game remains protected for seventy years after the author’s death. So a very old game might still be copyright protected, which means rereleasing requires the right holders consent.

In Europe orphan works also seem to be a hot topic. In May last year, the European Commission released a draft Directive on certain permitted uses of orphan works, and started a consultation on this new Directive. This Directive proposes to deal with the exploitation of creative works of which the right holder cannot be traced.

The full article of Robert Grandia can only be read by subscribers of the magazine. However a part of the article can be read on the Dutch website IE-forum.nl (see link below).


Reference: IE-forum.nl

By: Deniece Teterissa