2016 The invisible hand, copyright and the preservation game

Call for papers: Games history symposium, deadline January 24th 2016

The invisible hand, copyright and the preservation game

Libraries have a special role in copyright: many jurisdictions confer upon them exceptions as well as structuring roles. These have been the source of much debate in the past years. But the role(s) of libraries in fostering markets of digital copyrighted works is not clearly understood. Drawing from Intstitutional Economics (Coase) as well as internormativity contract theory (Belley), this presentation will explore the case of digital games licensing for libraries. Through a grant from the US-based Knight Foundation, our team of researchers at Concordia University (Canada) is devising a licensing schema as well as technological solutions to allow for a market to emerge between independent digital games studios and libraries worldwide.

Libraries, archives and museums (LAMs) are conferred special copyright powers for preservation purposes in many jurisdictions around the globe. At first glance, these exceptions seem sufficient to tackle the legal issue of preserving video games from the institutional perspective. This paper will attempt to argue otherwise, in fact, pointing out that well-functioning markets may prove to be a better alternative in the long term.

The first issue to discuss relates to how copyright is specifically geared toward preservation, namely through exceptions. For LAMs in the Canadian context, it is unclear how far the exceptions would allow these cultural institution to fully embrace the issue of preservation. These external constraint of Copyright has a direct impact on the intervention’s scale and scope from LAMs on this issue. This will become evident once copyright exceptions for preservations are analyzed and discussed from the perspective of a systematic solution to video game preservation.

The second problem to discuss involves conceptualizing preservation within the context of the marketplace. Drawing from New Institutional Economics (Coase), we claim that preservation, or the lack thereof, which we call forgetting, is in reality a negative externality of well-functioning markets. Only once we have properly understood the dynamics of forgetting can we fully position LAMs within the context of preserving video games at the social and institutional level.

A third point to cover deals with how preservation occurs in other sectors of the cultural economy. For example, publishing a book sets off a series of social processes enshrined in copyright and other pieces of legislation, such as obtaining an ISBN, its legal deposit as well as the public lending rights system. These processes are not based on copyright exceptions but rather derive from a close understanding of the business dynamics of the book trade. The video games community will benefit from understanding the complexity of preservation in other sectors of the cultural economy.

In light of the previous points, LAMs must seriously consider an alternative course of action than exceptions to copyright. We believe that building new licensing models is the only way to ebb the tide of new games facing the abyss of forgetting.

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