1996 on the legal protection of databases (the “Database Directive”).

(Collectively referred to as the “Community Framework.”)

˲ Directive 2001/84/EC of the European Parliament and of the Council of September 27, 2001 on the resale right for the benefit of the author of an original work of art.

˲ Directive 92/100/EEC of November 19, 1992 on rental right and lending.

Problematically for the anyone intending to preserve games, the Community Framework does not recognize the notion of multimedia works as a specific type of protected content, and no definition or specific framework related to multimedia works is available in EC law. Reproduction of multimedia works is addressed at the Community level through the various copyright and related rights directives as they apply to the constituent elements of a multimedia work: for example, software programs, databases, sound, and images. This is a pattern that is replicated in national legislation and in practice this means a distributive, fragmented approach is adopted, within which each component part of a multimedia work must be considered separately. Since multimedia works are not, in general, made available on computer platforms in such a way that individual elements can be removed from the whole, this means a multimedia work will effectively enjoy, as a whole, the strongest protection under law that is available for any of its constituent parts.

Taking a legally distributive (or cumulative) approach to multimedia works means each individual multimedia work a library or archive intends to preserve must be considered in order to determine the protection that it enjoys under the law, and what exemptions might apply. It is not legally safe to assume every game enjoys the same protection. As the law protects each element of the multimedia work separately, games with music will have a different legal character than those without, and so on. This makes it effectively impossible to carry out legal due diligence on the scale required.

European law grants libraries and archives no general right of reproduction but permits them to reproduce (or transfer) digital material only in

in view of the
financial and legal
difficulties inherent
in public bodies
attempting to
preserve games,
might it be possible
to place this
responsibility
on the industry?

certain specified cases. While the exemptions libraries enjoy are sufficient to permit some of the activities necessary for preservation, they fall far short of covering the full range required. There is a tendency for national legislation to be both more permissive than Community law, and for it to provide a greater degree of detailed governance. This flatters to deceive however, as national regulation is often simply incompatible with Community law, and is open to be overturned by anyone minded to press the point at the European level.

In view of the financial and legal difficulties inherent in public bodies attempting to preserve games, might it be possible to place this responsibility on the industry? This would have the immediate advantage of circumventing many of the difficulties outlined in this column. After all, copyright holders have the absolute legal right to preserve the material they own, and arguably have at their disposal better human and financial resources to undertake this task than do public bodies.

Games represent an important sector of the modern economy. In the U.K. alone, there are around 200 games studios, employing around 28,000 people and generating global sales of around $2.65 billion a year. The industry contributes approximately $623 million per annum to national GDP. How-

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