There is a swathe of video game ROMs and emulators floating around on the internet that can be readily downloaded. There are also people who convert their old games into ROM images so they can be backed up and conveniently accessed through emulators. But is any of this legal in Australia?
With a few simple clicks, we can download free software online and often we don't stop to think about the legalities of the action. Emulators and ROMs have gained a lot of momentum in recent years as a way to play games without the need for a physical console.
In a video games context, emulators are simply a piece of software that pretends to be a physical gaming system. Let's clear one thing up first: emulators themselves aren't exactly illegal. If you've obtained it lawfully and the code isn't under any form of copyright then it's completely fine. That's not usually a problem since most emulators are created to be free-to-use.
ROMs, on the other hand, are a different story. There's a common assumption that if you own the game, then it's fine for you to rip the data, turn it into a ROM image and store it as a backup copy or to play it on legal emulators. After all, you did pay for it and you're not sharing it.
Oliver Smith, intellectual property and technology lawyer at law firm Bird & Bird, explained why this assumption is wrong:
"Now we need to consider the laws around copyright in computer programs, a form of 'literary work' protected by the Australian Copyright Act 1968 (Act). In simple terms, 'copyright' is the 'right' to 'copy'. For the most part, that means a person (or in this case company) that owns copyright in a literary work, has the right to choose how and to whom a copy of that work is made available. "If you use the cartridge to create a ROM image, you are making a copy of the game. That's not permitted under the Act, because copyright is the exclusive right to do acts comprised in the copyright in the work."
By now, you might be thinking, "But doesn't copying a ROM for a game I already own fall under the idea of Fair Use?"
To clarify, Fair Use is a concept that allows the use of copyright material for a limited and 'transformative' purpose. The latter includes using the content for commentary or criticism. Fair Use is often employed as a defence for copyright infringements.
Unfortunately, Australia doesn't have a Fair Use exception. As Smith explained: "Australia has a much more limited concept called 'fair dealing'. Fair dealing permits use of copyright work for certain limited purposes, including research or study, criticism or review, parody or satire, reporting news, judicial proceedings and professional advice."
There are some exceptions in the Australian Copyright Act for computer programs and for 'non-infringing back-ups', also known as 'format shifting', but that doesn't apply to all ROMs copied from old game cartridges or discs unless you obtain permission from the copyright holder. Smith said:
"This exception doesn't apply if the data in the ROM cartridge 'decompiled' to create the back-up, or if the owner has so designed the program that copies of it cannot be made without modification. "Arguably, if the original might one day be a collectible, there is some merit to an argument that the ROM image is made so that the original can be stored away. But this is probably the exception rather than the rule. It would be harder to argue in our hypothetical that the ROM image was really made for the purpose of a back-up and not just so it can be played on a different device."
While there may be some exceptions if you do own the game and rip the ROM yourself, most of us are likely to just download ROMs that are already available online. That, Smith said, is definitely illegal and is no different from torrenting an episode of Game Of Thrones.
"So that's the long answer: unless a clear exception applies, the ROM image of Legend of Zelda is likely to be an illegal copy," he said.
The illegalities around obtaining ROMs are frustrating given physical copies of retro games are incredibly hard to find or are ridiculously expensive. This is compounded by the fact that working consoles that can play these games are also difficult to find. Sure, video games companies are increasingly catering to retro gamers by releasing some of our favourite titles through online marketplaces for their respective consoles, but the range is limited at best and the conversions often play poorly on the new systems.
There's a lot wrong with copyright laws in general and there are aspects that definitely deserve a review to bring them in line with modern times. Smith did offer a glimmer of hope in regards to this:
"But watch this space — the Productivity Commission is busy on a report to Government on copyright which is likely to include some recommendations about expanding "fair dealing" to include concepts of "fair use". It was already recommended by the Australian Law Reform Commission in its Copyright and the Digital Economy Report No. 122, released in 2014."
This story appeared in August 2018 and has been republished to help highlight the wonderful contributions women have made to Kotaku Australia over the years, our way of acknowledging International Women's Day.