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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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In some games, which are more emergent there is a set of rules, a set of goals, but there is the scope for a fair bit of creativity and innovation on the part of the player within those parameters. When you structure emergence into a multi player environment you find that players actually create content for each other. Thus we are not talking about a product that is authored entirely by the developer. The product itself has undergone a shift in authorship and the consumers have become productive. This is a fairly major structural shift. We are not simply talking about a piece of music that has been authored and released and then someone has picked it up and remixed it. We are talking about the product itself being made by the people that are using it. It is a shared or a collaborative authorship.

While production of something as complex as a film, which can involve many hundreds of people, can still fit within a copyright framework, multi player games actually disrupt the cycle by incorporating the productivity of hundreds or even thousands of consumers into the construction of the text itself. Consumers usually reside at the end of the value chain, not somewhere at the start and in the middle. Texts such as books or a piece of music are usually created by an author, their distribution and access rights are organised by publishers, and they are consumed by audiences. There is a temporality to the process and it is quite linear. However, if the audiences start to author parts of the text, how are the distribution and access rights negotiated, and who actually owns that text? That is what the structural shift in games does: it disrupts a lot of the conventions because copyright relies on a notion of authorship that does not really fit with this production model.

If you disrupt authorship you disrupt the basis of copyright and intellectual property and this implies a whole shifting in relationships between developers, publishers and players that has many implications. We are not talking about all games – a single player console game which has a linear progression that gives you no options for creating your own pathways or content at all probably does not fit this model. But something like a multiuser network game really fits into the shifting terrain. They have a constant production cycle which is recursive. They are never finished and are collaboratively authored. More conventional media follow a linear cycle (although this is not to deny the process of cultural production which is very recursive at a meta level), but the production of the individual text has a linear structure.

My point thus far has been to highlight the difference between games and more conventional media. I want to move now to considering content creation communities. When we speak about modding communities we are moving away from the activity of playing and into the creation of extra content which becomes incorporated into the game. The games industry uses this content all the time, it is an integrated part of the industry model.

It is a commonplace. The industry has recognised that the productivity of players can be harnessed and have understood the innovation and the research and development potential of their audiences. Their players have become creators who can actually be harnessed into the production of the text. That is a really exciting and new way of looking at how you would produce something in a media context. Game texts change through playing, they are changed through post release additions, and they have this recursive production cycle which incorporates player creations.

What do players create? There has been a long history of players doing this whether the company releases tools for doing so or not. Back in the early 1990s when PC games were still young and not a very well developed industry, players would always hack the code and make their own stuff because they often thought they could do it better. They would make ‘skins’; objects; they would mess with the code and make their own artificial-intelligent agents or ‘bots’ to play against; make customised user interfaces; or they would create entire games using existing games engines.

The incredibly successful game CounterStrike was developed by a team of players who decided that they could use the engine from HalfLife and make their own game. It has won all sorts of industry awards and player awards and has been commercialised and the whole thing was made by player creators. This is a fairly well developed pattern within the industry.

Ninety percent of the content inside the Sims is created by players, who trade their content on the internet.

Where it gets interesting is the response from, or the ways in which this is managed by, developers or publishers. Publishers can be different from developers and so they have a different set of understandings of what they want from products. Some publishers will give you the tools and you can make mods. However, they will then claim to own the mods. So anything a player creates for the game, they can upload into the game, can share it with everybody else, but the publisher will claim all the IP on it. Others say players can upload it, can share it with each other, and do not claim ownership of it, but prevent players from commercialising it. Still others say players can create mods, can do a variety of things with them, and do not prevent the commercialising of them. Players can share mods and can choose to monetise them if they want (this is the model Auran has chosen with Trainz). This range of responses to modding practices is about harnessing the productivity and then negotiating the ownership of the IP, and that can be a very complex process.

Another aspect concerning ownership and licensing is the secondary economy surrounding games – black markets where people sell in-game items for real money in internet auction houses. This poses all sorts of interesting questions for the law because if a virtual item takes on a real world value, if money inside a game can be equated to real money, does that mean when somebody steals something inside the game it is theft that can be prosecuted under the law? Which is basically a jurisdiction issue in a funny way. Is the game actually a separate jurisdiction or is it inside the jurisdiction where the game is played? Is there a magic circle that delimits the game as fantasy, and can it be maintained in the face of player practices to the contrary?

The issues concerning property are about who owns the database of objects in the game. Major conflicts and tensions arise from this. In particular I would like to point to the issue of avatars. When you develop a character in a game, you inhabit an avatar – it is your online identity. Sometimes we are talking about people who play between twenty and forty hours a week inside a virtual world and their avatar embodies some of their identity. Can Sony Online Entertainment (for instance) own that online identity? Where is the hard line between the virtual and the real and between what is code and what is social? Is there ever any importance attached to the social if we always resort to property law? Do we erase the social significance of these things? Legal discourse often erases the importance of affect and social community when it resorts to property as its main discursive construction.

Involvement of End Users in the Production Process WITH JOHN BANKS

Both Sal Humphreys and Greg Lane have touched on some very dynamic and quite exciting areas in the game development process, with the game developer and the production process overlapping with the creativity and involvement of the end user communities, namely the fans and the game players. I will talk about the Trainz project and how we started it back in 2000 and recent releases and how over that process we have increasingly involved the end user community, or the fan community, which is basically a worldwide network of Trainz fans. Their passion and enthusiasm for Trainz is directly involved with the Trainz development process, which adds incredible amounts of innovation, creativity and value to the project.

Auran has reaped a lot of benefit from the involvement of fans in the project – Auran is therefore accountable to the fans for the benefits gained.

Towards the end of this presentation I will talk a little about the accountability we have towards the fans for the innovation and creativity that they bring to the project.

Game designers and developers are increasingly enlisting and involving fan communities in the creation, development and promotion of games.

Involvement of the end users does not just happen when they pick the game up and buy it at the store and take it home and install it. Even the very idea of calling them end users is now a little redundant because fans are right up front increasingly participating in the games development project itself.

They are creators and producers. Trainz is a perfect example of this – a distributed organisation that is physically located at Teneriffe in Brisbane and yet incorporates a peer production network of fan content creators who are based in the United States, the UK, Italy, Germany, throughout Scandinavia, etc. This very distributed team of content creators all come together and contribute to the Trainz project.

There is another way of thinking about this which was previously raised by Sal Humphreys. Professor John Hartley from QUT talks about how the value produced in these networks is drifting in such a way that the relationship between producers and consumers has become blurred. On one hand we have the Auran development team working on the Trainz project made up of software developers, artists, programmers, designers, producers, etc who are professional and paid for what they are doing. On the other hand the very success of Trainz relies on a pool of voluntary fan labour, so you are getting this blurring of the boundaries between the professional and the amateur.

One way of thinking about these networks is the phrase ‘participatory culture’ and I am borrowing this phrase from Henry Jenkins. The reason I am throwing it up is because there can be a tendency to think about these relationships as being new and novel, that they have just erupted upon the scene in the last few years. It is important I think to remember that researchers like Jenkins have been looking at the relationships between fans and corporate media producers for well over 10 years now. Jenkins’ interests go back to looking at things like the Star Wars fan community and the involvement of Star Wars fans in creating amateur films that spin off around the Star Wars universe. In Henry Jenkins’ Textual Poachers Television Fans and Participatory Culture 216 he talks about the fans troubled relationship to the mass media and consumer capitalism. He talks about fans lacking direct access to the means of commercial cultural production, and their limited ability to influence entertainment industry decisions.

Henry Jenkins’ more recent work indicates a shift in these relations among fans and corporate media producers. He talks about three things that influence the emergence of these new relations that Trainz provides a strong example of. First, new tools allow end users to create and generate there own media content. Second, the Do it Yourself media production (1992) Routledge, New York.

culture which has emerged around these tools, which we can see with the Trainz fan community as they create things such as their own locomotive models. Third, Jenkins mentions economic trends favouring media convergence.

Keith Done’s account of Dungeons and Dragons, and the move particularly more recently by Wizards of the Coast with open game licenses, gives you a sense of the importance of these open relationships with the fan communities. The whole Dungeons and Dragons milieu has been quite influential. Auran’s CEO, Greg Lane, comes from a strong role playing background, and was influenced by the open culture that built up around role playing.

I want to move on to discuss Auran and Trainz and the process of making one of these distributed production networks work. How does it work?

How do you manage it? You have a pool of very talented and creative voluntary fans, but because you are not paying them they do not necessarily do what you (the company) want them to do, or when you want them to do it. The relationship that emerges here between the commercial and the noncommercial, and the propriety and the non propriety gets quite messy. It is a messy network, as the relationships are not clearly delineated.

Trainz and the fan third party content creation community emerged when I first went to work for Auran. Greg Lane said “well John, the project you are going to be working on is Trainz which is about this model train simulator”. I was not really excited about it at the time – I was thinking I would be working on some other cool game project and I was doing Trainz stuff! We discovered there was a network of Trainz fans with websites all over the world into which we could tap. We identified the leaders of these networks and invited them to Auran’s website to share their ideas through the forum we had launched. We published on the forum the very early design ideas for the Trainz project, describing where we wanted it to go, and what we thought it would look like – its features and functionality The aim was to obtain the fans’ feedback and input. There were heated debates with the fans about our initial design proposal We had one guy by the name of Vern who was an influential member of the TrainSim online fan network. Vern had strong opinions about the design proposal and would hammer our team with his views. He was not happy with the direction in which we were taking the product and would hammer us with his opinions, with what he thought we should and should not be doing. Vern’s feedback actually ended up being very influential on some of the key design decisions we eventually made.

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