Most early computer games are still protected by copyright and therefore they cannot be archived or made available online (even for not-for-profit purposes like the PlayitAgain project) without the consent of their copyright owners.
However copyright protection will not necessarily protect computer games from game cloners, who base their activities on the fundamental principle that copyright law has never protected an idea; it only protects the expression of an idea. If you are wondering what that means, then you are in good company!
Absent a legal solution for the orphan games, archivists have to balance the risks. On the one hand, to not archive them risks their physical deterioration and loss to our cultural heritage, but does comply with copyright law. On the other hand, to digitally archive the orphan games will preserve them for cultural heritage but there is a risk (maybe quite small but you can never be sure!) that the copyright owner might appear and instigate legal proceedings for copyright infringement.
During April this blog will focus on the legal environment for computer games of the 1980s. This post explains why many early computer games are “orphan works”. (An orphan work is a work which is protected by copyright, but whose rights-owner, or owners, cannot be identified and/or located.) Orphan works cannot be used for purposes which are protected by copyright.
