Digital Access and Preservation: The Road to Licensing Hell Is Paved with Good Intentions

For many, the COVID-19 lockdown period seemed a perfect opportunity to revisit the iconic audiovisual works of their teenage years. If that is your case, you undoubtedly found out that getting your hands on that special TV series, movie, or video game meant spending big bucks on the few rare second-hand copies auctioned off online ― or even worse, you were simply unable to acquire it legally at all. Sounds familiar? Welcome to the conundrum many call the “licensing hell.”

Licensing hell happens when the chain of title in underlying intellectual property rights is so complex, restrictive, or ambiguous that the legal distribution of a cultural product becomes practically impossible. At the dawn of the era of all-digital distribution ― which could make matters worse ― it is high time we ponder the issue.

Of course, the increasing scarcity or even loss of cultural products is by no means a new phenomenon. The vast majority of classic Hollywood films from the silent era, including masterpieces like Cleopatra (1917), serve as examples. What is surprising ― and even worrisome ― is that the licensing hell can render works inaccessible to the public a few short years after their initial distribution, as the examples below clearly show.

First, you must understand that the legal and technological environments we operate in are especially conducive to the growth of the licensing hell phenomenon. By its very nature, a cultural product is often built as a constellation of intellectual property rights. For example, while a film is a cinematographic work as defined by the Copyright Act, it often requires licences for other works contained therein. This is especially true for adaptations of literary works and films that feature pre-existing musical works.

You also have to take trademark licenses necessary for using products, logos, or characters owned by others into consideration. 

In addition, exclusive rights conferred by copyright, incorporating the rights of reproduction and distribution to the public in the various regions of the world, are frequently broken down in favour of multiple stakeholders.

At a time when cultural products are becoming more and more sophisticated and when adaptations, remakes, and crossovers are more frequent than ever, it’s easy to understand how incredibly complex it can be to manage underlying intellectual property rights. Add to that the dazzling and unpredictable rise in innovative formats and distribution channels that can make the interpretation of any licence agreement downright perilous and you have all you need to send any cultural product straight to licensing hell.

Some famous cases

Neon Genesis Evangelion

The cult Japanese anime Neon Genesis Evangelion, first discovered by English-speaking audiences in the 1990s in a dubbed version offered by U.S. distributor ADV Films, is a perfect example of this phenomenon.

Following the liquidation of ADV Films and due to complex litigation involving, among others, Gainax and Khara animation studios (Khara was the studio of series creator Hideaki Anno), the only way that fans of the series can now access the original English version is by buying a bootlegged copy.

Despite strong demand from the public and organized petitions, Netflix, which managed to conclude a new licensing agreement to broadcast the series in 2018, was unable to get the go-ahead to use the original dubbing and had no choice but to re-dub the entire series, much to the chagrin of diehard devotees of the original 1990s version. Although the exact reasons for this dramatic decision were not disclosed, it was likely that Netflix could not extricate the original dubbing from an impenetrable legal quagmire.

Another major disappointment for fans of the original series was not being able to enjoy Bart Howard’s ‘Fly Me to the Moon’ with the closing credits. Netflix had no success in getting a licence to use the song at a fair price.

In all probability, it looks like the original English-languge series from the 1990s has been sentenced to licensing hell, never to be legally distributed again.

Silent Hill P.T. and Scott Pilgrim vs. the World The Game

In the video game industry, pulling certain titles from online markets ― what is referred to as “delisting” ― is widespread and often controversial. Among well-known examples is that of Konami’s definitive delisting of a playable demo of Silent Hills nicknamed P.T. (for “playable teaser”). The move fired up the ire of legions of players and led some observers to conclude that the industry is suffering from a preservation crisis.

Closer to home, Scott Pilgrim vs. the World – The Game, produced by Ubisoft Montreal and based on the Universal Studios film Scott Pilgrim vs. the World ― itself inspired by the Bryan Lee O’Malley series of graphic novels published by Oni Press ― is a prime example of licensing hell.

Notwithstanding outstanding gamer response and success right from its launch in 2010 to its delisting in 2014, the game cannot be played legally anymore unless it was installed on a hard drive at the time it was still being commercially distributed.

Given the impressive list of players and rightsholders above, not to mention soundtrack composer Anamanaguchi, it’s easy to see why negotiations got nowhere as the beloved game quietly sunk into oblivion ― to the great displeasure of the gaming community and even the game’s creator.

Noteworthy initiatives

Shawn Sackenheim’s Delisted Games is among the initiatives worth mentioning in response to the licensing hell phenomenon for its ongoing work of identifying delisted video games and documenting the stories and reasons why they’re no longer accessible to the public.

Fortunately, every cultural industry does have its share of stakeholders sparing no effort in the Herculean task of untangling legal logjams in the battle to save products from licensing hell. 

In the video game industry, (formerly Good Old Games) is well known for resurrecting a number of games, including 13 titles from the Forgotten Realms series released in the 1980s and 1990s. When asked about their rehabilitation efforts, officials compared it to detective work more than anything. In an interview with PC Gamer magazine that sounded more like an adventure story than anything else, they described how it took them years to piece together a convoluted history of acquisitions, mergers, and bankruptcies, as well as digging up decades-old contracts before they finally succeeded.

The increased risks inherent to all-digital distribution

While you might think that technological developments and all-digital distribution (digital distribution of cultural products with no physical equivalents) would facilitate the preservation of cultural products, just the opposite is true.

Scientific publications have been warning us for years that the digital age could represent the most fragile and complex preservation environment in history. Furthermore, many countries have already started work on updating their copyright laws following recommendations from the World Intellectual Property Organization on digital preservation.

The burgeoning use of streaming platforms is a real cause for concern. When audiovisual work is removed from them, alternative solutions for accessing said work are often non-existent or extremely limited. With the development of new distribution models like gaming on demand (GoD, or cloud gaming) platforms, many, including industry observers, believe that the problems associated with licensing hell today will seem like a cool summer breeze years from now.

The case for better managing intellectual property rights

Considering what’s at stake, it’s important that cultural industries learn from the mistakes of the past and put better tools in place for managing intellectual property rights, starting with more comprehensive ways to draft licensing agreements. Using more flexible terminology that takes changing technology, market realities, and the level of interest a work generates into account would go a long way to preventing many of the problems that cannot be solved today. Providing simple and inexpensive dispute resolution mechanisms for settling complex contracts that have so far baffled concerned parties would be another welcome initiative.

In the meantime, we can only hope that the cultural products that make up the fabric of our lives today will remain accessible for future generations to enjoy without having to get their fingers burnt trying to pry them out of licensing hell.

Vincent Caron
Vincent Caron practices in the areas of trademark law, copyright and intellectual property law. He also advises companies, particularly in the high-tech sector, on governance and corporate law issues in the context of various financing and commercial transactions.
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