Presentation
In an article by Zoé Keunebroek for the media outlet Les E-novateurs, Ms. Chomiac de Sas offered her analysis of new forms of video game consumption and the impact of its dematerialization.
Drawing on their respective experiences, Olivier Mauco, president of the European Video Game Observatory, Laurent Duplouy, head of the multimedia department at the National Library of France (BnF), and Ross Scott, initiator of the #StopKillingGames campaign, described the consequences of the fully digital approach guiding the policies of contemporary video game publishers.
Read the full article, “Will I Still Be Able to Play Tomorrow? When Video Games Go Digital,” and a summary of our discussion with Ms. Keunebroek.
Intellectual property: Ownership and usage rights of video games
In summary, purchasing a game is equivalent to purchasing a license to use the game. The studio will always retain ownership of all the elements that make up the game and constitute its intellectual property. Therefore, it cannot be considered a sale of the game itself; otherwise, one could duplicate and sell any game purchased.
An additional point to consider is that if you purchase the physical medium on which the game is stored, you become the owner not of the game itself, but of the physical medium, which you can then resell. The system is similar for books, music, and other artistic creations (except software).
In all circumstances, the player purchases a license to use the game, and depending on the medium, they may also own the cartridge, disc, CD, DVD, etc. This license may include the game, items, and all its components (goods or services). Depending on the publisher’s strategy and the intended media, the right of access may be perpetual (a downloadable game accessible in its entirety offline) or temporary (The Crew on Ubisoft, whose servers were shut down at Ubisoft’s discretion).
The End User License Agreement (EULA) for games defines the licensing terms and, by extension, the publisher’s ability to terminate access to certain game elements, such as updates, bug fixes, or certain servers.
Video Game Law: Differences and Consequences Between Physical and Digital Formats
PFor games sold “in a box,” it’s important to understand what’s actually included:
- If it’s an online activation code for a one-time game download, then the concept of a physical sale seems inappropriate;
- If it’s an item containing all or part of the game without requiring an online connection, then the term “physical sale” still seems relevant.
This has immediate legal consequences: if the buyer becomes the owner of the physical medium, they can sell it without restriction. The terms and conditions of sale usually prohibit copying and reproducing the content, but the purchased medium belongs to the consumer, who can use it as they see fit.
It’s not certain that there are significant differences between the two formats, as each has its advantages and disadvantages.
If you have a physical copy of a game, it assumes, at a minimum, that the game is playable without an online system (for example, campaign modes or bot-based games). However, if the game is massively multiplayer via dedicated servers from the publisher, it could potentially block access.
Some publishers/games allow the creation of a private server without the publisher’s permission; however, most online game publishers will consider the creation of a private server to be copyright infringement.
Duration of access to “purchased” video games: planned or monetized disappearance
It is rare to have the right to resell a game license: whether temporary or perpetual, the license to use the game is always issued by the publisher and remains under their sole control.
The lack of a clear and explicit statement that the player/buyer is obtaining a license to use the game and not ownership of it is the subject of debate regarding whether this constitutes misleading advertising under the Consumer Code. However, it seems that publishers are relatively careful to emphasize, whenever possible, that it is only a license. But these references are generally limited to legal documents and are overshadowed by the presentations and sales offers of video games presented to the general public.
What are the consequences and setbacks for the video game sector?
The digitization of video games has been, and still is, seen as a considerable advantage, significantly reducing printing, shipping, and game deployment costs, offering guaranteed online access (no more losses or unplayable games due to physical media degradation), and providing online game content updates.
It is true that a significant number of games are now available at highly competitive prices because they are only available digitally.
It is also true that consumers are not necessarily disadvantaged simply by virtue of digitization. Only abuses can and must be combated.
