ESA won’t support copyright exemption for digital game archives

The Electronic Software Association has pointed to copyright concerns as a major difficulty in games preservation.
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The Electronic Software Association (ESA) has argued against digital games preservation by libraries, arguing that having an accessible range of digitally-preserved games would threaten owner copyright. As noted by Game Developer, the ESA has issued its stance as part of a hearing held by the United States Library of Congress Copyright Office to interrogate the value of a copyright exemption for remote access to preserved video games.

In the circumstances analysed, a researcher would gain access to a remote library of video games specifically for research purposes, with a range of games included in this archive. The Software Preservation Network sought a copyright exemption for this circumstance in 2023, as a means to better allow researchers access to games, and to better preserve games in an official capacity.

Per lawyer Steve Englund, there is currently “[no] combination of limitations [ESA members] would support to provide remote access.” Concerns over potential copyright violations seemingly outweigh calls for third-party games preservation – and that’s despite recent research finding that around 87% of pre-2010 games are not preserved at all.

Read: New study reveals 87% of classic video games are missing

As reported by Game Developer, there were multiple solutions delivered to answer the ESA’s concerns, including reassurances that any preserved games archive would only be accessible by researchers and professionals for research purposes – and that the archive would not become a “free” hub for anyone to play games.

Despite this, Englund reportedly “shot down” all responses, claiming he was not satisfied that any solution would address concerns, or restrict archive access to academics only. Englund believed there would be loopholes in establishment of the archive, and that access would be too difficult to monitor.

Video Game History Foundation’s director Phil Salvador argued that only a few institution would have the expertise and desire to create video game archives, making these collections much easier to monitor and control. Other parties in the hearing further argued that progress must be made, and that some leniency is required in the preservation of video games.

For now, it appears talks over this exemption have stalled. The US Copyright Office will likely continue to interrogate a potential copyright exemption to preserve games in libraries – but progress will be slow to arrive. You can read more about the hearing on Game Developer.

Leah J. Williams is a gaming and entertainment journalist who's spent years writing about the games industry, her love for The Sims 2 on Nintendo DS and every piece of weird history she knows. You can find her tweeting @legenette most days.