Fair Dealing and Video Game Emulation – Assignment

Lately, I’ve been playing a lot of Fire Emblem: Genealogy of the Holy War. Fire Emblem itself is arguably Japan’s most famous tactical role-playing game franchise, with seventeen mainline entries and several spin-offs to boot.[1] However, I’m not playing the game on a console. The game was released exclusively for Japan’s Super Famicom in 1996, and never made it overseas. Because of that, if I want to play the game, my only real option is to download the game off the internet, mod it into English, and play it on an emulator to run it on my PC. Nintendo claims that this behaviour is illegal.[2] However, I’m not sure it is in Canada. To that end, this paper will undertake the copyright infringement and fair dealing analysis for emulation. It also must be noted that this paper will be analyzing emulation from the perspective of the end user, emulating a game on their computer, rather than distributors of game files online.

The first part of any copyright analysis is determining whether a prima facie infringement of copyright has taken place. Here, one most likely has – s3(1) of the Copyright Act outlines the right to reproduce the work or any substantial part thereof in any material form as a sole right of the work’s creator and those authorized by them. There are two ways of getting a game file to emulate with – either downloading them off the internet, or “dumping” the files from your own physical copy of that game.[3] In the case of downloading the file off the internet, ESA v SOCAN held that downloading explicitly qualifies as reproduction.[4]

Dumping your own game files presents different considerations, with a possible argument here under s29.22(1) of the Copyright Act. Dumping your own games may fall under reproduction for private purposes provided the individual dumping the game is the only person using it for emulation and they legally obtained the game they dumped. However, this argument may be thwarted by s29.22(1)(c) – for the reproduction to be non-infringing, it must not circumvent a technological protection measure.[5] Technological protection measures are any technologies that control access to a work or restrict the reproduction of that work.[6] There is a strong argument that, inherently, a video game’s code being designed to operate exclusively on a specific platform is itself a technological protection measure. This is reinforced by Nintendo v King, which recognizes the physical configuration of a game cartridge, rendering it specifically for use with a specific console, as a technological protection measure.[7] Similarly, code rendering a game usable only with specific hardware should qualify. However, dumping is likely protected under the interoperability exception – if the only purpose for dumping the game is to make it run on a user’s computer, and not to distribute the file, the act should clearly fit into the exception and not violate copyright.[8] This also extends to the act of emulating as a whole, beyond the question of file acquisition – any TPM violation done in the sole pursuit of emulating a game will likely be excused under interoperability.

In the case of emulating downloaded game files, a prima facie infringement is made out. However, there may be a strong fair dealing argument. For fair dealing to be made out, we first need to define which category of fair dealing emulation can fall into. Emulation is most likely to fall into the research exception. Per Alberta v Access Copyright, fair dealing is as much about users’ rights as it is about authors’ rights, so the fair dealings categories must be interpreted in a broad manner.[9] Furthermore, Justice Abella in SOCAN v Bell provides a compelling case:

“But that does not argue for permitting only creative purposes to qualify as “research under s. 29 of the Copyright Act. To do so would ignore the fact that dissemination of works is also one of the Act’s purposes, which means that dissemination too, with or without creativity, was also expressly included as an allowable purpose in s. 29. (…) Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest.”[10]

The above quote, to me, provides clear and definitive reasoning as to why emulation should be considered as research. One likely is not playing a Super Famicom game to write a thesis paper on it. However, people absolutely emulate games for personal interest – to learn more about a favourite franchise, to see what an older video game was like, or to play a classic game and take it in, among countless other reasons. Based on SOCAN, this should absolutely be enough to qualify as personal interest-based informal research. As such, the first step of the fair dealing test is satisfied with an enumerated purpose.

With a purpose outlined, the next step of the fair dealing analysis concerns a discussion of six factors identified in CCH Canadian Ltd v Law Society of Upper Canada, each of which should be weighed in terms of “fairness”. The first factor, purpose, has already partially been addressed – the purpose is research. However, it is worth noting that dealings within a specific allowable purpose may vary in fairness, with research for commercial purposes tending to be less fair.[11] In the case of emulation of games, I believe that the purpose is closer to the “fair” end of the spectrum in most scenarios. Generally, as discussed, emulation constitutes an individual downloading a game and playing it. Because this does not entail a commercial purpose, it should trend towards fairness. Of course, there will be edge cases – for example, YouTubers profiting from ad revenue on videos playing emulated games. However, such situations are obviously a minority.

The second factor is the character of the dealing. Here, the court looks at what was actually done with the work – if a single copy was used for the legitimate fair dealing purpose, it will trend towards fairness. However, distributing a work widely will trend towards unfairness.[12] Most emulation scenarios are more fair here. Emulation by nature involves a single user playing a copy of a game, for a legitimate research purpose as established. If someone were to facilitate the distribution of game files for mass emulation, for example by uploading them online, that would make their dealing much less fair. Without that, though, it is hard to see this factor weighing against fairness for emulation.

The third factor is the amount of the copyrighted work involved in the dealing. Here, the analysis looks at not just how much of a work is involved, but also whether the dealing purpose requires a certain amount to be used in determining fairness.[13] Of course, emulation will always mandate that the full amount of the work is involved – emulating requires a complete game file. As such, despite using the full work, which may be less fair, the purpose requires the full work to be used, neutralizing that unfairness.

The fourth factor regards what alternatives are available to the dealing, with the presence of legitimate alternatives to the dealing weighing towards unfairness.[14] This category is where we can make distinctions in the gaming world based on an individual game’s availability. For example, we can return to my initial discussion of Fire Emblem: Genealogy of the Holy War. That game is no longer sold, and it can only be played via a Nintendo subscription service that allows subscribers to play the game on their Switch. Even that is only available in Japanese, rendering it inaccessible to non-Japanese speakers.[15] Even when a game being emulated is available in the player’s native language, the only alternative to downloading games for emulation is often to purchase a copy of the game second-hand, from a distributor who is not the original creator of the game. Given that Access Copyright found that copyright law is about balancing user’s rights with author’s rights, and both emulating and buying a game second hand have the same non-existent impact on the original creator in these scenarios, emulation is no less reasonable. As such, emulation is as fair an alternative as purchasing second-hand when the game in question is no longer available from the developer. Some games, however, are still in production by the original developers, and those can be distinguished on this factor of the analysis.

My analysis thus far has been premised on the games in question no longer being sold by their developers. Some modern consoles also have emulation available, though, like the Nintendo Switch [16] and Playstation 4.[17] In such cases, emulated games can be purchased off in a way that benefits the authors. While there is a financial cost here, it would be unreasonable to say this is an unfair alternative because the author stands to benefit. To say otherwise would introduce a conception of fair dealing and copyright law that exclusively benefits users with absolutely no benefit to the author, going against the balance copyright law is meant to seek. As such, the fairness analysis on the fourth factor should hinge on whether the game being emulated is available for purchase in a way that benefits the developer. This will generally weigh in favour of emulation as fairness, outside scenarios where someone is emulating a modern game that can still be obtained from its developer. In those cases, the only fair way to emulate such a game is by purchasing and dumping it yourself.

The fifth factor to be analyzed is the impact of the dealing on the original work, with dealing that negatively impacts the original work being less fair.[18] The analysis here is similar to the alternatives argument – in scenarios where the original game is no longer officially available, there is no negative impact on the original work because the dealing is not competing with that work. When the original game can still be obtained from its developer, the dealing will be more unfair because it threatens to devalue the original product by providing alternatives to purchasing it. This is furthered in situations where the emulated version runs better or in higher fidelity, which may make it more appealing to a potential consumer.[19] As such, it will have the same dealing impact as the last factor – if the game is downloaded, but could be purchased from the developer, it will be less fair.

The last factor regards whether the work should be disseminated, with considerations regarding the confidential nature of certain works.[20] This will generally be irrelevant when it comes to specifically emulating games given that, outside of uploading game files online, only one person, the player, is ever involved in the dealing, meaning minimal dissemination actually occurs. Concerns about the emulation of unreleased, unpublished video games may exist, but they should not impact the fair dealing analysis for emulation specifically because the concerns present (method of acquisition of an unreleased game, risks from sharing unreleased content) revolve far more around the act of having the game, not specifically emulating it.

In conclusion, it is clear to me that emulation in Canada is legal in a variety of circumstances. In the cases of dumping one’s own game files, the “interoperability” exception should be engaged to render the emulation legal in the first place. Meanwhile, in the case of game files acquired from the internet, the major consideration is the availability of the game in question. Broadly speaking, any situation where a game cannot be legitimately purchased from its developer or publisher should render the dealing fair and the emulation legal. In cases where the game is legitimately available, however, the “availability” and “effect on the original work” factors will weigh heavily enough to render the dealing unfair and the emulation illegal. This outcome balances the rights of both the consumer, who wants to play video games, and the creators, who want to profit off their games. In situations where that profit is genuinely impossible, it is challenging to find any justification as to why consumers should not be able to access certain games, making it difficult to see how emulation under such circumstances could be unfair.

Works Cited

[1] Fire Emblem – Wikipedia

[2] Nintendo Support: Intellectual Property & Piracy FAQ

[3] Ripping games – Emulation General Wiki

[4] Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (CanLII), [2012] 2 SCR 231 at para 5.

[5] Copyright Act, RSC 1985, c C-42, at S29.22.

[6] Ibid at S41(1).

[7] Nintendo of America v Jeramie Douglas King and Go Cyber Shopping (2005), 2017 FC 246 at para 30.

[8] Copyright Act, RSC 1985, c C-42, at s41.12(1).

[9] Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at paras 19, 48.

[10] Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 at paras 21-22.

[11] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 at para 54.

[12] Ibid at para 55.

[13] Ibid at para 56.

[14] Ibid at para 57.

[15] List of Nintendo Switch Online games – Wikipedia.

[16] GitHub – NicolasArvani/yuzu: Nintendo Switch emulator.