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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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With a number of other friends within their gaming circle, Gygax and Arneson wrote ‘Chainmail’ in 1969, providing rules for small unit combat in a medieval setting – battles between forces numbering a dozen or so figures aside. Soon they were down to individual soldiers fighting one-onone combat, and the concept of unique game characteristics was introduced. In the past, a figure on the table may have represented 20 men, to which the rules assigned an intrinsic strength. There may be multiple copies of the same figure on the table but they would all normally be rated with the same generic strength. Once Gygax and Arneson got the game down to one figure actually represented by only one person, they began to rate each figure differently according to physical characteristics, such as strength, dexterity, constitution etc. This quickly led to the idea of running a game for a heroic group of characters fighting against foes; the foes being ‘controlled’ by a separate referee. The game was free flowing, with the referee, controlling the game through a narrative and using the rules to govern combat and tests reliant on individual character abilities. In 1979 ‘Dungeons and Dragons’ was published as the first commercial roleplaying game (and still the market leader) under the banner of Tactical Studies Rules (TSR).

The real difference with an RPG was that, in reality it needed no board or pieces, the whole game could be played out in the imagination, under the guidance of a referee or ‘storyteller’. The referee described everything that the players experienced in an alternate setting, making decisions based upon probabilities and dice rolls. The game became co-operative, with players assisting each other, acting as a team to overcome adversaries and problems introduced by the referee. Throughout the 1980’s, many RPG rule systems were created by rivals of TSR, drawing their inspiration, from multitude of source materials. While largely jumping on the fantasy bandwagon, they also explored alternate settings for their rule-sets, including science fiction, the wild-west, horror and espionage. In a similar vein to board games, many RPGs drew upon TV shows and motion pictures for their settings (Star Trek, Star Wars and more recently Babylon 5 and Buffy the Vampire Slayer). The RPG was a revolutionary idea in the development of entertainment, with far-reaching consequences that would heavily influence other groundbreaking technologies of the same time period.

Paralleling the emergence of RPG’s, was the development of the PC and games in the virtual world. RPG’s had a great influence in material that was produced for the PC (and they still do). Early games, such as Ultima and Wizardy, were highly text based with primitive graphics and were immediately embraced by the ‘paper and pen’ based RPG community. As the memory capacity and graphics quality of PCs grew during the 80s and 90s so did the PC audience, drawing a significant number of enthusiasts away from traditional forms of round-table gaming. There was a definite slump in traditional RPGs during the 1990s, which was related both to the rise in interest in PC Games and poor business practices amongst traditional RPG producers, particularly TSR.

Despite the dent made into the gaming community by PC games, innovators of non-electronic media were still out there. Another huge breakthrough in game design occurred in the early 1990s. Richard Garfield was the designer of a few moderately successful board games, including Robo-Rally. One day he was watching his children enthusiastically swapping baseball trading cards and came up with the idea of the collectible card game; the player would collect packets of cards and each packet would contain a different mix of common, uncommon and rare cards. The concept was that the player would use their skill in making up decks of cards (according to limitations set by the rules) that they thought could defeat an opponent’s deck of cards in a game. ‘Magic: the Gathering’ arrived on the scene, published by Wizards of the Coast (WOTC) as the first collectible card game (CCG) and has spawned many copycats since then.

Such was the runaway success of Garfield’s game and the millions in profit that was generated, that toward the end of the 1990s WOTC were able to buy up TSR, who was on the verge of bankruptcy. Vice-President of WOTC at that time was Ryan Dancey, a Dungeons and Dragons enthusiast.

Prior to any take-over, he was sent to investigate reasons why the company that produced his favourite game was in so much trouble. Essentially, he found a company that was out of touch with its fan-base, producing poor quality products that nobody wanted and nobody needed in order to run a game of Dungeons of Dragons. In addition, hundreds of thousands of dollars were being used to protect the copyright on an endless cycle of products, which it really had no real need to protect in economic terms.

Basically, a resourceful referee of any RPG only needs the core rule-books that define the game setting. The actual game is like a series of stories (called adventure modules) and a creative referee can design their own adventures, using the core books. TSR invested a lot of energy into producing its own adventure modules and many of those were contrived or sub-standard. What’s more, they clamped down on anyone trying to write independent adventure modules, alienating the more talented members of their fan-base. As the internet evolved in the 1990s, those former fans became e-community leaders and their criticism of the TSR product made a severe impact on sales. Add up falling sales and the high cost of retaining rights on a dead product and you’ve got a disaster waiting to happen.

Ryan Dancey managed to reverse all that and restore the Dungeons and Dragons product back to its place as market leader in a very short time. He took the ‘bold’ step of listening to the fan-base and organising a complete overhaul on the core Dungeons and Dragons source books. But even more dramatically, inspired with the emerging Open Copyright Licence (OCL) movement he created the Open Gaming Licence for WOTC in 2002, allowing amateur and independent companies to publish RPG adventures and related products, using a standard reference document of Dungeons and Dragons game mechanics.

This has created a renaissance in the RPG community, with many unpublished writers and artists finding work with small companies, establishing their particular niche in the market, often exploiting new technologies (e.g. offering product for download from the web rather than in a printed format). The existing licence has also drawn some criticism from those who think it is too restrictive in its current format, citing problems in distinguishing open content from closed content in publications and product identity requirements as the main issues. It is interesting to note that these critics have suggested a shift to using the OCL Attribute-Share-a-Like Licence.

There you have it, a brief synopsis of games from their creation in the ancient world to their design and publishing under a movement inspired by the OCL. As we move into the 21st Century, boldly going where no one has gone before, the games industry seems to have gotten a bit healthier and a bit wiser. There is a new boom in traditional board games being driven by the translation of many European favourites into the English language, Collectible Card Games seem to have taken a second wind with a second generation of gamers getting interested in ‘Magic: the Gathering’. PC games are bigger than ever with a large following in diverse Massive Multi-player Online Role Playing Games (MMORPGs) and the traditional RPG industry is a hive of industry. The last two areas offer the best opportunity for creative input under the OCL movement and it will be interesting to see what challenges and directions the industries involved take to further embrace and engage their fan-bases in the near future.

Computer Games Landscape WITH SAL HUMPHREYS

Over the past six months Professor Brian Fitzgerald, John Banks, myself and Nic Suzor decided to look at what it was Auran was doing with their licensing and approach to managing IP in fan-created content. We were all interested in this and our paper on copyright is featured in Media International Australia. 215 My task for today is to cater for people in the audience that might know nothing about games. Games are incredibly successful interactive applications. We hear about the term interactivity all the time – to the point that it has almost been evacuated of meaning, but games really are interactive in interesting and meaningful ways. Games are very successful at what they do, and it is worth looking at them whether you are interested in games or whether you are more interested in new media and digital environments. We can use them as an exemplar for how a really good interactive environment actually works, and for examining what the implications of that might be in terms of IP, copyright, and various other regulation issues. We need to look at how they differ structurally from other media. They are not the same as a story, or a book, or a piece of music. They do very different things and part of that difference is about the mode of interactivity that they actually employ in engaging their users.

Sal Humphreys, Brian Fitzgerald, John Banks and Nic Suzor, ‘Fan based production for computer games: User led innovation, the ‘drift of value’ and the negotiation of intellectual property rights’ (2005) 114 Media International Australia 234.

Looking at their differences gives us the chance to look at what happens in the legal ecology that surrounds them. One of the things that has not really been dealt with, or rather, we keep touching on it and then we segue away from it, is about commercialisation. The thing about games is they already exist in a commercialised environment and so the issues about commercial and non-commercial that arise in other new media environments are already being encountered and dealt with in varying ways by the games industry and players.

The model implemented through Trainz gives us an opportunity to explore how the relationship between commercial and non-commercial does not have to be an either/or proposition in the way that it has been set up in a number of talks that have been given in the last day and a half. It’s possible to actually work out hybrid solutions and this is one of the things that a Creative Commons License tries to do. When I think about Creative Commons Licensing I sometimes translate that to creative compromise – that it is a compromise around the rights between totally open and closed models.

I want to begin by outlining some basics about computer games before moving on to examining ownership and licensing. The size of the computer games industry is very big with sales at more than 239 Million in the US.

There are no worldwide figures currently available. There are figures from the UK though, which estimate the revenue from entertainment and games to be £18.5 billion. In terms of demographics, there are a few myths around – for instance that game players are always geeky adolescent boys locked in their bedrooms in some little isolated bubble – and it is good to debunk these myths. Half of all Americans aged six and older play games, with the average age being 29 years old. We see here that the generation that grew up with games did not leave games behind as they got older, and are still playing. Also, 39 percent of game players are women, so it is not just a male activity.

We talk about videos games or computer games, as if they are all the same thing. They actually come on quite different platforms. There are consoles like Xbox and other proprietary hardware platforms, there are computer or PC games and then there are arcade, mobile phone and the mixed environment games. The console games give rise to a whole extra set of interesting issues around proprietary integrations of hardware and software.

However we are not dealing with that in this presentation.

There are also quite significant differences between a single and multi player game particularly in terms of content creation. The multi player networked games mostly run in the PC environment, although the console games have begun to be networked. X Box now has a network facility for playing with other people across a proprietary network.

The types of games most people think of when they hear about computer games are first person shooters. In fact there are a lot of genres and first person shooters are small part of the market. Henry Jenkins says that Barbie Fashion Designer actually outsold Quake which is a fairly salutary kind of statistic. I imagine that Quake had a lot of ‘cracked’ copies circulating on the net, which probably meant that there were still a lot more copies of Quake than Barbie in existence. The point is there are a lot of genres of computer games which don’t involve shooting I want to talk a little bit about interactivity in the production cycle. Apart from their success and the size of the industry, games are implemented through a different structure and a different production cycle than most conventional media and these differences have implications for many of the institutions that surround them. When I use the term interactivity, I use it to mean that games require a meaningful input from players in order to progress. Some games, but not all, require players to make up their own content as they go (I’m not talking here about the third party content creation that is often generated by fans of a game, but that just the process of playing creates content). The person who is playing it has to be engaged in progressing the text, which is not the case with most other media that are not interactive. Rather than engaging with an already finished narrative, players are actors within the text itself, and the game assesses the performance of the player and gives feedback in various forms, about the performance.

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