Is Australia getting grown up about age ratings?
This is a guest post by Lachlan Kingsford, an Australian games scholar and the brains behind Nerdy Gentleman. I asked him to tell us a bit about the latest state of play regarding Australian games classification, which I've written about previously.
There is something rotten with the state of gaming in Australia. Unlike other entertainment mediums, games can not be given an R18+ rating or classification. This has two practical effects: Games that are deemed too mature (generally due to violence or sexual references) are banned, making their sale illegal, their importation illegal and in Western Australia, their possession illegal. Other games that have been generally rated R18+ equivalents in other markets (such as The Witcher 2) are downrated to MA15+ to get them through the system.
In Australia, all games sold must be rated by the Australian Classification Board, eschewing the voluntary nature of (for instance) the US ESRB rating system for games. Comparably to most ratings systems. media rated M is “recommended for mature audiences”, MA15+ is restricted to people over 15, or those under 15 accompanied by an adult guardian and R18+ is completely restricted to people over the age of 18. The ratings system fall within the gamut of the state (rather then federal) powers, and as such the ACB itself is governed by the attorneys-general of each state – though is bound by the Commonwealth Classification Act. Assuming that the states want to retain the consistency of the system, decisions need to be unanimous. The rules of importation fall under Commonwealth law. What I hope I'm beginning to get across, is that getting any level of agreement between all of the involved governments (or at least their representatives) is no mere feat – a fact which has delayed the introduction of an R18+ rating for a significant period of time. It is worth noting that there remains some possibility of inconsistency between states, as evidenced by the X rated content being banned from sale (not import) in every state and territory other then the ACT and Northern Territory.
There have been rumblings of discontent with the current situation for quite some time, and rumours of change for almost as long. Supporters argue that the R18+ rating for games should exist to allow adults to play games intended for adults, and to avoid censorship of a kind that does not apply to other media. Furthermore, supporters argue that the R18+ will assist in preventing children from accessing mature content through sending a “clear, unambiguous message to parents that the game is unsuitable for minors”, and by preventing the misclassification of games (as discussed before). Dissuaders of the R18+ rating have largely focussed on protecting children from the effects violent games (and in some cases, from games in general). The Final Report on the R18+ rating produced by the federal Attorney-General's department in November 2010 provides an excellent summary of the arguments and statistics on submissions at http://www.ag.gov.au/
In its comparatively recent history, no R rating has been forthcoming despite a majority support of the governing attorneys-general owing to the requirement of unanimity in their decision making. Michael Atkinson, the now former South Australian attorney-general was unwavering in his opposition to the rating during his almost 7 year tenure (concluding in March of 2010). However, Michael Atkinson is now out. In December 2009, the Minister for Home Affairs, the Hon. Brendan O'Connor released a discussion paper on the R18+ rating for games, which led to almost 60 000 public submissions indicating overwhelming support (amongst those surveyed) for an R18+ rating. The attorneys-general voted on the R18+ rating again in July 2011 with unanimous support save for the abstinence of the the new New South Welsh attorney-general – who has since agreed in principal to the changes. (source: http://www.abc.net.au/
Finally, there has been significant movement at the station which may indicate a chance of actual change. On February 15, a bill was introduced at the Commonwealth level to amend the Classification Act and Broadcasting Service Act to create an R rating of games and legalise their importation. The bill proposes that the R rating will be introduced on the January 1, 2012. It is likely that the bill will successfully pass through both houses of parliament, although there is a possibility of delay following its having been called to an inquiry by an investigative standing committee. Finally, to be effective the changes will need to be implemented on a state level. So those of us who support the rating are cautiously optimistic.
Why am I cautiously optimistic? Draft guidelines for the R18+ rating were released last year. (http://www.classification.
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There is something rotten with the state of gaming in Australia. Unlike other entertainment mediums, games can not be given an R18+ rating or classification. This has two practical effects: Games that are deemed too mature (generally due to violence or sexual references) are banned, making their sale illegal, their importation illegal and in Western Australia, their possession illegal. Other games that have been generally rated R18+ equivalents in other markets (such as The Witcher 2) are downrated to MA15+ to get them through the system.
In Australia, all games sold must be rated by the Australian Classification Board, eschewing the voluntary nature of (for instance) the US ESRB rating system for games. Comparably to most ratings systems. media rated M is “recommended for mature audiences”, MA15+ is restricted to people over 15, or those under 15 accompanied by an adult guardian and R18+ is completely restricted to people over the age of 18. The ratings system fall within the gamut of the state (rather then federal) powers, and as such the ACB itself is governed by the attorneys-general of each state – though is bound by the Commonwealth Classification Act. Assuming that the states want to retain the consistency of the system, decisions need to be unanimous. The rules of importation fall under Commonwealth law. What I hope I'm beginning to get across, is that getting any level of agreement between all of the involved governments (or at least their representatives) is no mere feat – a fact which has delayed the introduction of an R18+ rating for a significant period of time. It is worth noting that there remains some possibility of inconsistency between states, as evidenced by the X rated content being banned from sale (not import) in every state and territory other then the ACT and Northern Territory.
There have been rumblings of discontent with the current situation for quite some time, and rumours of change for almost as long. Supporters argue that the R18+ rating for games should exist to allow adults to play games intended for adults, and to avoid censorship of a kind that does not apply to other media. Furthermore, supporters argue that the R18+ will assist in preventing children from accessing mature content through sending a “clear, unambiguous message to parents that the game is unsuitable for minors”, and by preventing the misclassification of games (as discussed before). Dissuaders of the R18+ rating have largely focussed on protecting children from the effects violent games (and in some cases, from games in general). The Final Report on the R18+ rating produced by the federal Attorney-General's department in November 2010 provides an excellent summary of the arguments and statistics on submissions at http://www.ag.gov.au/
In its comparatively recent history, no R rating has been forthcoming despite a majority support of the governing attorneys-general owing to the requirement of unanimity in their decision making. Michael Atkinson, the now former South Australian attorney-general was unwavering in his opposition to the rating during his almost 7 year tenure (concluding in March of 2010). However, Michael Atkinson is now out. In December 2009, the Minister for Home Affairs, the Hon. Brendan O'Connor released a discussion paper on the R18+ rating for games, which led to almost 60 000 public submissions indicating overwhelming support (amongst those surveyed) for an R18+ rating. The attorneys-general voted on the R18+ rating again in July 2011 with unanimous support save for the abstinence of the the new New South Welsh attorney-general – who has since agreed in principal to the changes. (source: http://www.abc.net.au/
Finally, there has been significant movement at the station which may indicate a chance of actual change. On February 15, a bill was introduced at the Commonwealth level to amend the Classification Act and Broadcasting Service Act to create an R rating of games and legalise their importation. The bill proposes that the R rating will be introduced on the January 1, 2012. It is likely that the bill will successfully pass through both houses of parliament, although there is a possibility of delay following its having been called to an inquiry by an investigative standing committee. Finally, to be effective the changes will need to be implemented on a state level. So those of us who support the rating are cautiously optimistic.
Why am I cautiously optimistic? Draft guidelines for the R18+ rating were released last year. (http://www.classification.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our email updates here
Posted on 22.2.12
Games Law Round-Up: January 2012
There's so much going on these days in games law, I don't have time to write about everything sadly. So, I thought that every month or so I'd do a round-up of the notable developments. Here's the first one - let me know what you think...
It has been a BUSY start to the year in the world of games law. Here's the highlights from January, in no particular order:
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It has been a BUSY start to the year in the world of games law. Here's the highlights from January, in no particular order:
(1) BETHESDA AND INTERPLAY SETTLE THE FALLOUT LAWSUIT
I've been writing about this lawsuit since way back in September 2009 (latest post here) and now it is finally over. The essence of the lawsuit was that Interplay used to own the rights to the Fallout series of games, sold them to Bethesda but kept the rights to make a Fallout MMO under certain conditions, which Bethesda claimed Interplay had failed to comply with - and therefore the rights reverted to Bethesda. Now, after a fairly bruising and long-running lawsuit involving a number of skirmishes, it seems that the parties have settled on terms favourable to Bethesda. Specifically, Interplay has given up any rights to the Fallout MMO and in return Bethesda agreed to pay USD 2m to Interplay- it's not clearly exactly what for (anyone know? legal costs maybe?) Overall, I think this is a real victory for Bethesda and a monument to its tenacity in litigation despite preliminary setbacks. Fingers crossed this does no longterm harm for the Fallout series (or Interplay).
(2) MONUMENTAL GOES INTO ADMINISTRATION
UK developer Monumental went into administration early in the year - a sad start to the year. Unfortunately, I don't think that's the only developer collapse we're going to see this year either. For those who are interested are affected by this, here's some more information about administration.
(3) CODEMASTERS EMPLOYMENT LAWSUIT COMPLAINT
A UK games programmer has taken legal action against his former employer, UK publisher Codemasters, over a series of allegations regarding crunch and overtime. UPDATE: @gamecounsel has pointed out that actually it's not a lawsuit he's pursuing, but rather a complaint to "the relevant government bodies"
(4) US PATENT REFORM
Two of my legal brothers wrote this article on Edge about the impact of US patent law reform on the games industry. Personally, I'm unconvinced: patents are important to the games industry but I don't think these particular laws are going to do a great deal of note as far as the games industry is concerned (apart from maybe making life a bit harder for patent trolls). Anyway, check it out if you're interested.
(5) SOPA
You all know what I'm talking about. Here's what I thought about it.
(6) MEGAUPLOAD
The USA is going medieval on Megaupload's ass it seems. US federal prosecutors have charged its founders with a number of criminal offences, are seeking to extradite to the USA and have taken Megaupload itself offline. Clearly, it's all about allegations that Megaupload is involved in facilitating content piracy. This has the strong potential of becoming another Pirate Bay lawsuit. It's also unlikely to be particularly helpful to those calling for stronger anti-piracy laws, given that the Megaupload operation took place just days after the latest setback for SOPA (arguably demonstrating that stronger laws aren't needed). Personally I don't think it's as simple as "Megaupload = no stronger laws needed", because I'd imagine the action being taken here is very complex and expensive, and therefore not easily done many times a year.
(7) POPCAP CLOSES BAKING LIFE - WHAT HAPPENS TO THE VIRTUAL GOODS?
Popcap decided to close down its poorly performing social game Baking Life and made it clear to their ~750,000 monthly average users that they wouldn't have any further access to the game after 30 days, including to any virtual goods/currency they'd bought. It reminds me Zynga's decision to close down Street Racing (another social game featuring virtual goods which was shut down), which my friend Nicholas Lovell wrote about here. The closure of both Baking Life and Street Racing raised questions about the legal ramifications of shutting down users' access to virtual goods.
(9) NCSOFT V BLUEHOLE
NCsoft are suing Bluehole, the developer of MMO Tera (and made up of former NCsoft employees), alleging that Tera is made up of trade secrets and proprietary material taken from NCsoft without authorisation. Sounds like a fairly straightforward commercial dispute, albeit one that would dictate whether Tera is released or not - I'll keep an eye on it for you. Aren't I nice?
(11) SPRY FOX SUES LOLAPPS OVER GAME CLONE
Here's the basic details and here's some thoughts from Kevin Dent on the case. So Spry Fox made Triple Town, LOLApps entered NDA'd discussions with them regarding publishing it, then LOLApps broke the discussions off and released its own cloned version of Triple Town, Yeti Town. Spry Fox decided they weren't going to take that lying down and commenced proceedings against them. I await the outcome of this case with great interest. If it was to progress all the way to trial, it would bring two very important legal issues before a judge: (1) whether copyright law permits game clones; and (2) the extent to which a NDA in general terms protects disclosure of information regarding a game, particularly when that information is then misused to create a competing game. I'm going to be writing more about game clones soon so I shan't say more on that subject right now. What I will say though is that, right now, the position doesn't seem great for LOLApps. Still, it's early day: we'll know more ofc if/when LOLApps' legal defence is published - until then, we only have Spry Fox's version of events.
(13) GOOGLE'S NEW PRIVACY POLICY
Google has done something really quite interesting: they've unified all of their 60+ historic privacy policies into a single document, which attempts to set out in one place how Google will treat the privacy of its users. As fellow games/media/tech lawyers will know, how large companies approach data protection and privacy is an increasingly important and complex subject, given both the increasing use of data as well as the lack of common standards across the key global markets (even the EU is pretty fragmented although that is changing). Some companies go for a country by country approach, but that's really very cumbersome for more than a few countries. Others try a regional approach, e.g. USA and then EMEA etc. But Google is one of the first to try a single policy for all its products. Not everyone like it - Microsoft seems unhappy, for example. I suspect pretty much everyone interested in privacy, including the world's privacy regulators, will be looking at it closely too. I'm sure we'll have more on this during the year.
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Posted on 5.2.12
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