I too have many gripples with copyright but this is simply wrong. Copyright is designed to protect the rightsholder. Whether it is a person or a company is irrelevant. This isn't a conspiracy or cynical-type explanation, this is by design
I expect to live at least another 50 years. In a large amount of countries copyright is granted for the lifetime of the author and an additional 70 years.
It seems a little excessive.
Copyright is designed "to promote the progress of Science and Useful Arts."
That should be the first question.
Disney and Sonny Bono hired some lawyers to ramrod some dumb crap through. It happens. Let's see if we can fix it.
The standard set by SCOTUS was, apart from what you've already said, that a time extension was permissible as long as the "traditional contours of copyright" were not altered. One of them was explicitly called out, fair use.
The Court also explicitly mentioned that for a regulation to survive constitutional scrutiny in regards to copyright, it must not supersede, nullify, or even "disturb" the exercise of fair use.
This set the precedent that fair use is constitutionally required, not only a generous grant by Congress.
Copyright was meant to be "time limited".
Why is it that Nintendo still has the rights to works they released over 20 years ago even though they've already turned a profit several times over? Why do they get to sell them to people over and over again?
Ports, remasters, official emulation, and subscriptions have given a longer "tail" for at least a handful of classics but even without that it's "the IP" that would be most jealously guarded.
Trademark definitely comes into play, and is probably the more important form of IP here in practice (and for some series may be the only really effective protection). But you still couldn't go out and make a game with Master Chief or Nathan Drake even if you called it something other than Halo or Uncharted.
Trademarks are also interesting and somewhat unique for video games: the typical rule is that the title of a book or movie, etc. is not eligible for a trademark. You need a name that's being used for a series to get a trademark. But video games are excluded from this rule and can (and almost always do) get trademarks for their titles even when they're standalones.
Some nintendo games are currently not available anywhere (from nintendo or from original publisher), but if you copy/download that rom, you can get fined due to fictional losses for the copyright holder. What losses? If you're not selling the game anymore, how can you have losses from it? If you're not selling that movie in my country, how can you show a loss from me downloading it?
The entry on the GOG.com wishlist has 36K+ upvotes with a new comment posted every week or so. Seems like low hanging fruit for someone at EA to make a quick buck.
The problem is, a game is not owned by single entity. There were multiple persons and organizations own the game.
Some persons are now deceased, some organizations are now bankrupted.
It's almost impossible to find all entities who own the rights, negotiate the share. It costs more than the potential profit of the old games.
What we need is a copyright exemption law(or recognized as a fair use if you're living in US common law system) which allows unlimited use of copyrighted works(including commercial use) if the copy of the work cannot be obtained from the author.
Some may argues that they want the right to not distributed, but the very reason copyright exist is to give temporally exclusive rights the the author for... you know what? distribution. If the author don't want to distribute their works, it's shall not be copyright protected in the first place.
Also the games aren't 100% unavailable, they're perfectly available on their original platforms on the secondary market if you want one badly.
That is because there are statutory damages to copyright violations. By definition, any violation causes a fixed amount of damage.
An advocate for the devil would claim that those creators were compensated upfront rather than over the lifetime of the product. Therefore, the company is rightfully collecting the revenue that the creator left to them that they already paid for.
Which is a view you’re welcome to hold, but I’d certainly prefer a system designed for people who engage in creative work to have a greater share of what they create, and for the economics of creative work to not be so deeply entrenched in wealth consolidation for its own sake.
Disclaimer: the sum total I’ve been paid for purely creative work is approximately $11 from my share of ticket sales and a couple of drinks on the house. Which is $11 dollars more than I ever sought out, because I realized making a living as an artist had dim prospects before I even got a chance to try.
When copying was extremely hard(back in antiquity) everyone who was an artisan was producing 1 art per 1 unit. So you didn't even need a state-level enforcement of copyright; either it was good work or it wasn't.
During the run-up to industrialization more possibilities to make units without making art came about. But the means of production were still capital and labor-intensive - there were only so many printing presses in town. Therefore, copyright built a social contract: the state enforces what the presses can do to copy your work. As soon as you exited the borders of that state, piracy was prolific.
This regime continued all the way through the 20th century and only started cracking when homemade copies became good enough, which, within media industries now fully enmeshed with state interests, the obvious response was "don't tape at home, don't copy that floppy, you wouldn't download a car."
Nowadays there is no scarcity of copies, only scarcity of attention. "Likes" are effectively a currency, but likes aren't state money, they're an awkward mediation of platform algorithms. Instead we have a two-class media system where, in each form of media, there's "the industry", which deploys all the mechanisms of the state(corporate investment, IP laws, marketing campaigns) to encourage consumers to give up their state bucks, and then the "gig workers", who have assembled a patchwork of social media mechanisms to get eyeballs to their work and pick up commissions, crowdfunding, and other forms of fundraising that allow indirect exits to state bucks. Because you mostly can't get paid for what you already did without utilizing the full might of the state, everyone is inclined to push monetization further towards promises of future work: the stretch goal, DLC, etc. Buying the rumor and selling the news.
In this framework, we have to discuss NFTs. They aren't "ready for use" in the current state of things, but they present an alternative mode of exit: discard the unit production mindset and define the art as a financial asset. It already has some analogue in the gallery system, but digitization makes it a cheap, low-friction process. With "all my apes are gone" comes some demonstration of effectiveness: You can, in fact, just put a price to art, let traders make risky gambles with it, and rely on a non-state, independently operated system to give you a cut of the resulting carnage.
What we don't have yet is strong coordination between likes and trading. What made NFTs a bubble was the degree of misrepresentation on display; far too many works were being inflated through traditional boiler-room schemes, and many more were stolen works scraped from unwilling or unaware sources. Everyone pounced on proof-of-concept tech with an angle for a rug pull. But this is the kind of thing that tech has seen many waves of: snake oil salesmen turning some genuine breakthrough into fools' gold, followed by a gradual address of each specific problem that made it foolish.
So I think of the possibilities for art as a thing society can fund and reward going forward as a thing that will look both more social-media-like and asset-like; maybe not in the specific mode NFTs took, or in the specific form that engagement on TikTok takes, but drawing on some aspects of both and building a greater-than-the-sum result.
I can almost guarantee that this isn't Nintendo's primary motivation for the behavior. There is much more money to be made with xplat games, and almost all (if not strictly all) consoles are loss-leaders.
Nintendo is ruled by dogma, nothing more, nothing less. Nintendo is much like Larry Ellison[1], don't try to make sense of them. If it wasn't for a core set of IP that their designers/developers routinely ace, they would be dead in the water.
Stay with me.
In Europe during the time of Mozart, composers were incentivized to be prolific by only getting royalties off the first public performance of their works. Now that is not fair today because of course we can losslessy reproduce such things infinitely.
However, Humble Bundles (and really, steam sales and other similar discounts and give-aways) work because the vast majority of the money a game is ever likely to make is early in the revenue cycle. Not 20 or 10 or even 5 years later.
We don't know the revenue Nintendo derives from virtual console sales, but you can be assured that virtually none of it is making it to the creators which is who copyright is designed to protect.