You may have recently heard that the Video Game History Foundation shared data suggesting that 87% of video games released before 2010 have not been preserved in any way. Part of the reason for this is copyright laws that have no exemption from protecting video games. It didn’t help that the Entertainment Software Association, or ESA for short, resisted those exemptions.
Well, the ESA has responded with data from the Video Game History Foundation, and it’s not exactly reassuring. ESA President and CEO Stanley Pierre-Louis said video games are “the most expressive works in our copyright canon” and that it is “critical” that video game companies decide how their games are published.
Pierre-Louis even goes so far as to say: “I don’t know if I agree with the results [the VGHF’s] study or how they characterize it. There is a robust path to conservation and it is happening”. Pierre-Louis cites recent efforts by Sony, Microsoft and Nintendo to re-release their older catalog of games and also says that ESA member organizations “work with a wide range of well-resourced public institutions that adhere to high professional standards in seeking how best to preserve games for the use of scientists”.
Unfortunately, there are 3 problems with ESA’s response. First, those recent efforts by the big three companies accounted for only 13% of their back catalog, something that Video Game History Foundation co-founder Kelsey Lewin says is “not enough.”
Second, ESA’s collaboration with public institutions is based on guidelines issued by the Library of Congress Copyright Office in 2015, which will later be updated in 2018. Although these 2018 guidelines are better than the 2015 guidelines, they are still relatively restrictive and not updated since. In fact, the Library of Congress Copyright Office declined to make the guidelines more favorable because of “a greater risk of market harm in this context given the legacy video game market.”
Finally, as previously mentioned, the ESA has not only ignored efforts to preserve video games, they have actively resisted the more favorable exemptions from the guidelines that have been proposed. Also, despite letting the video game companies solve the problem, the video game companies have a lot of influence in the ESA. In fact, many video game companies are members of the ESA, including Square Enix, Capcom, Microsoft, Nintendo, and Sony. So the ESA’s plan to “let the video game companies run with it” isn’t really credible when those same companies are controlled by the ESA, and the ESA itself has been resistant to better exemptions to protect video games.
Still, Lewin doesn’t want the latest news to spark an “us vs. them” debate with his colleagues in the video game industry. Lewin even says that “we hope we can all agree that this is a place where libraries and archives can and should be empowered to make a difference.”
