RISC World

The abandonware conundrum

Paul Brett muses on a RISC OS problem.

You may recall that in last issue's PD column I was hopeful that a number of previously abandoned RISC OS applications would once again become available. So far there isn't really much news on this initiative, which is not greatly surprising. There are a number of issues involved in this process. Firstly you might think that the author of an application would hold the copyright. This is the normal state of affairs, in the United Kingdom if you write something then you own it. However once must realise that if an author takes an application to a publisher then the publisher may require the rights to that application as part of the deal.

Imagine this scenario. In the early 1990's an author writes an application. They take it to a publisher who agrees to pay them an upfront fee (for the rights) and a royalty payment based on sales. In addition the publisher also agrees to pay a fee for future improvements made by the author. The publisher carries on selling the application for a few years. Eventually sales tail off. In the meantime the publisher has diversified into Windows software. This proves to be a more lucrative business so eventually the RISC OS software stops being sold. Then a couple of years later the publisher is bought out by a larger rival. The original staff from the Acorn days have now long since gone. The buyer of the original publisher caries on trading in Windows programs.

Now the original author would like to get the rights to their application back. The rights rest with the buyer of the original publisher. However nobody in the buyer's company knows anything about RISC OS. Not only that but what's their motivation for granting the rights back to the author? Is there any money in it?

The authors dilemma

Here the author faces a dilemma. They could just decide the "take" the application back and "freeware" it themselves. They might be able to argue that the current owner of the rights is in breach of contract by not selling and/or promoting the application, but that could involve a trip to court. The author would also be acting illegally in doing so, although the chance of getting sued is absolutely miniscule. The other approach is to try to find someone in the new company who is prepared to do the work involved in releasing the application back to the author. Sometimes it is worth the author offering to make a small payment to assist things along and to cover some the legal costs that could be involved. This of course assumes that the people who hold the publishing rights can actually be found.

In many cases it's almost impossible to find the owners of the publishing rights. A large number of software publishers that operated in the early 1990's are no longer trading. They may have simply shut up shop and ceased trading. In this instance it might be possible to find the owners and ask them politely for the rights back. Often the owners of the publishing rights have no further interest in the application and will be happy to oblige.

The publisher went bust

This is perhaps the worst case example. The company that purchased the rights went bust. This can be very difficult. If the author is lucky then the contract they signed might say that should the publisher cease trading the rights will automatically revert, but in some examples this is simply not the case. The rights to publish the application would be an asset. If the author was aware of the company's collapse at the time and the author was owed unpaid royalties then they might have been able to claim the rights back in lieu of payment. Assuming they did not or were not able to then the situation can be rather complex.

The rights to the application (and hence the right to earn money from it) would be an asset. This may well have passed to one of the company's creditors. This could even be a bank. It's quite possible that a number of high street banks own the rights to RISC OS applications without even being aware of the fact. In the case of a limited company a liquidator will have been appointed. They will have been given a list of assets. Although in at least one example that I am aware of the list of assets did not include the rights to the application concerned. Instead the paperwork had strangely disappeared. In this example the author would be very unlikely to be sued by the rights owner if the made the application available.

So where do we go

It's a difficult problem. If the rights owner still exists then it might be possible to get the rights back, especially if the rights owner has made no effort to market the application for some time. If the rights owner can't be found then things are much more difficult. The author could just say "damn it" and release the application themselves, but they could be liable. Luckily the United Kingdom does not have the concept of "Punitive Damages", so the publisher wouldn't get much by suing, but they might suddenly pop out of the woodwork.

There is one final thing worth noting. The publisher will have the rights to a program called "X". Any author worth their salt will have their own code libraries that will have been used in application "X" and in other programs. So it might be quite easy to argue that the publisher retains the rights to "X", but that the author can release a similar application called "Y". The recent "Insignia" vs "TextEffx" scenario might ring a bell here. Although Cerilica owned the rights to the name "Insignia" the author was able to get right rights back provided the application was made available under a different name, in this case it's original name of TextEffx.

Getting the rights to software back can be very difficult. Given that the author will probably be giving it away for free they would be very unlikely to want to spend a great deal of time and money on the matter. There is one final thing that's worth remembering. Contracts relating to rights are a civil matter. The owner of the rights will need to take action to "protect" those rights and it might not be worth their while either. Lets face it if they haven't earned any money from the application for ten years they might not even know they have the rights anymore. It's not as though the RISC OS market is so large that anyone outside it is likely to take much notice.

Let us hope that more authors are able to get their currently abandoned applications once again available for the benefit of RISC OS.

Paul Brett