So there has been another case of Games Workshop issuing a cease and desist order to a small company over a claim of IP infringement. This time Blighty Wheel Miniatures have put out a 'Mutant Komodo' that looks somewhat like a concept in one of their books. As per usual the debate has centered around the extent to which the miniature looks like the book, whether you can copyright that idea at all, how much of a bunch of bastards GW are and what a bunch of chancers small companies that copy their IP are etc, etc. Numerous amateur lawyers have been engaged to no great effect.
It got me thinking about the whole are of copyright, ip, trademarks and patents though. There's a bit of a tendency in the gaming community to treat the law as absolute and forget that laws can be contentious and the whole are of copyright is decidedly odd in a number of ways.
Copyright exists, essentially, to correct a problem with free market capitalism. The problem is that you can buy and sell goods and services, but not ideas. With goods and services something is supplied that is unique and unrepeatable (you can make many copies of a product, but you can't give the same copy to two people), with ideas once they get out they 'belong' to everyone in that anyone can, theoretically, here and understand them.
This is, unfortunately, very bad for innovation. Why spend money developing an idea if, once the product is released, anyone can copy it? It becomes even trickier in the digital age when many digital 'products' are effectively just ideas, being collections of data that can be transferred and copied at no cost. So copyright exists to allow innovators to financially benefit from their ideas and so encourage innovation.
So far so good. But as with many attempts to solve a problem inherent in a system, it introduces new problems of its own and rewards some decidedly dodgy behaviour.
Few people begrudge creators the ability to financially benefit from their created works, whether they be miniatures, games, books, plays, works of art etc. Similarly, it doesn't seem outrageous that the estate of creators should be allowed to hold copyright for a time after their death. This ensures that families of creators who may have died suddenly or prematurely and where relying on their income can still benefit from the created work. The problem comes when you start being able to sell 'rights' to a concept and we get into the bizarre situation where people really are buying and selling ideas. And this leads to some odd effects.
Most people who have bought a licensed product relating to the Lord of the Rings will have come across the Tolkein Enterprises logo. What they may not know is that this organisation has little to do with Tolkein and his family, but is actually owned by Saul Zaentz whose acquisition of the film rights to the Lord of the Rings has been translated into the ability to charge people for the right to use the concepts and characters in the books. Is this okay? I think it's questionable. He had nothing to do with the creation of the characters, but then he did pay for the rights and, arguably, took a financial risk that might not have paid off. Tolkein was able to realise the immediate value of his idea years before it was possible to produce a film based on them. But should the investment be paying off more than a quarter of a century later and should it allow an effective veto on anyone who wants to use these ideas but cannot stump up whatever fee is demanded?
Where creators work for companies they usually sign over the rights to their ideas over to the company. Again they get the immediate financial benefit but forgo the long term benefits. It's worth remembering that 'Games Workshop' never created a single thing, because it's a legal entity not a person. The company paid for ideas, but is in a position to benefit far more than their creators ever did. Surely the research and development costs of Space Marines as a concept have been paid off by now? Why shouldn't any company be allowed to produce its own Space Marine model and allow consumers to decide which is the best?
I'm not sure about any of this and I'm not offering any real answers just trying to raise a few questions.
Just a final thought, if Games Workshops behaviour often seems like bullying you should try reading Bad Pharma by Ben Goldacre and take a look at the behaviour of some drug companies. A significant part of their business consists of trying to find ways to extent patents on existing drugs to increase profits but also maintain the high cost of some life-saving drugs. Games Workshops behaviour can be bad, but it is unlikely to cost anyone their life.