Shades of grey

Wednesday 19 July 2017

Computer games have historically been considered the preserve of children and students with too much time on their hands. However, as those children and students have grown up and become adults, a lot of them have retained their love of computer games and it has become a more mainstream and acceptable hobby.

As often happens with the inevitable advancement of years, nostalgia begins to rear its head and thoughts turn to replaying those childhood games in an attempt to recapture those carefree days.

Unfortunately it can be difficult to source original versions of the games and consoles – many of which are rare, or command high prices on places such as eBay – and as a result there has been an increase in computer programs called emulators which allow for copies or “ROMS” of the games to be played on a number of different devices, as well as devices that actually play original versions of the games.

So is the downloading and use of ROMS legal under English law?

The first question to ask is whether what you are using is protected by copyright. In general terms, a computer game will be protected by copyright, whether that is the coding of the software, the artwork and images, the music and sounds, or the text. It is also likely, given the relatively young age of the computer game industry, that the copyright in the various parts of the computer game will not have expired.

The next question is to ask whether or not what you are doing is an “infringing act”.

The Copyright, Designs and Patents Act 1988 (or CDPA) sets this out clearly at sections 16–21 in terms of primary infringement, and sections 22-26 for secondary infringement. In plain English, with some exceptions, you are committing an infringing act if you are acting as if you were the copyright holder or outside the scope of any licence that the copyright holder granted to the purchaser of the game. This second bit is key because most people don’t realise that when they “buy” a game they are only buying the licence to use the game for use at home – they are not buying the right to do whatever they want with the game.

So what does this mean? In simple terms, it means that generally speaking using an emulator to play ROMS is likely to be illegal and classed as an infringing act on several counts – firstly, in the downloading of the ROM, and, secondly, using the ROM.

A word of caution

An argument that is often cited as justification regarding the use of ROMS is that the copyright holders are unlikely to take any kind of action against infringers. However, it would be both foolish and risky to rely on this. In recent years, many software companies – not least Nintendo, one of the largest in the industry – have taken to bringing back their old games in alternative formats, whether that is by official downloads on software platforms such as Steam and Xbox Marketplace, or to actually re-releasing versions of the original games console such as the mini-NES and mini-SNES.

These re-released consoles have proved to be a lucrative source of income and therefore the likelihood of the copyright holders taking enforcement action is likely to increase going forward.