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Winner: Games Heritage! – Games preservation advanced by EU Copyright Directive


The legal framework for Games preservation has been significantly advanced by the new EU Copyright Directive. The European Union Directive on Copyright in the Digital Single Market implemented two key arguments of EFGAMPs comments on the copyright directive (Download EFGAMP statement): 

  • “Acknowledge games as part of the cultural heritage”
  • “Make the teaching exception applicable for cultural institutions”

First time, exceptions, which were usually only granted to analog media preservation are now applicable to games and software as well.

Article 6 (Preservation of cultural heritage) of the directive contains a broad, technology and type of work neutral exception for preserving the cultural heritage, which comprises games and software, too.

Additionally recital 22 now expands the teaching exhibition to cultural heritage institution. 

Both rulings are fostering the legal conditions for European heritage institutions in general and those who care for born-digital heritage in particular and they bring important advancements:

  • For preservation purposes museums, libraries and other cultural heritage institutions will be allowed to make copies of any works or other subject matter that are permanently in their collections, in any format or medium. 
  • Cultural heritage institutions are allowed to make copies of Out of Commerce Works available online without having to clear the rights on a work by work basis (authors will still have opt-out ability).
  • Digital copies of museum’s or archive’s collectibles can be made accessible for research and teaching purposes online to a defined group of people. This applies even for cross-border teaching activities. Since researching, teaching and learning are broad concepts it can arise a lot of room for making cultural heritage online accessible for defined user groups. 
  • Text and data mining allows researchers to make extractions and reproductions of copyright protected works in order to carry out, for the purposes of scientific research.

All this will be important advice when the EU member nations start implementing the directive to their national laws. Since the European Directive defines ‘only’ a framework, it’s essential to make sure that this aspects are transposed into the national laws as effective as possible. The implementation in the national laws of the member states has to be completed until 7.7.2021. 

Further read:

Paul Keller “Explainer: What will the new EU copyright rules change for Europe’s Cultural Heritage Institutions” (German translation)

European Union Directive on Copyright in the Digital Single Market

EFGAMP statement (by Till Kreutzer and Ramak Molavi)

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Comments (1)

[…] While this study is targeting the situation in USA it is reasonable to assume, that the availability of classic games on the commercial European market is as low. But legally the situation differs significantly. While in the US the options of memory institutions to preserve and making available out of commerce video games are based on the principle of ‘fair use’, the European law (Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market) offers an exception, which allows cultural heritage institutions under special circumstances to preserve and make out-of-commerce works available for non-commercial purposes without permission of the right holders. More information on this find here. […]

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