Explained

Why was mandatory preservation ruled out?

Contrary to the SKG demands, the Commission explicitly stated in its official response that it cannot propose a legal obligation to keep video games playable indefinitely after their commercial lifecycle ends.

The EU clarified that under the current EU copyright and Intellectual Property (IP) framework, rights holders maintain exclusive control over how their creations and technological architectures are used. Introducing a blanket mandate to modify or surrender software architecture would fundamentally conflict with these protected IP rights, so the EC could not consider mandating preservation.

Ok, but what does that really mean?

Although SKG said they were not seeking ownership of the IP, that doesn’t mean there isn’t a conflict with IP law.

Broadly speaking, IP law allows you to choose what to do with the IP that you own, including making it publicly available – if a publisher wants to discontinue a game, and they have all the relevant intellectual property rights*, then it’s their right to do so. You can’t force them to do otherwise because the whole point is that they own it and therefore get to say what happens to it. If players have agreed through T&Cs that their access to a game can be revoked, then, subject to existing consumer rights law (that already provides consumers with certain protections – more on this below) then the publisher can exercise that right.

It’s not just about the publisher’s IP either. If a third party grants a publisher the rights to use their IP (featuring a movie character in a fighting game, a song as background music, or a car manufacturer in a racing game) that licensing arrangement is specifically negotiated and has limitations on both parties. Handing the game over to players at end-of-life may be inconsistent with the way that the legal framework underpinning these arrangements functions.

IP law is complicated and technical and needs to hold up across jurisdictions within and beyond the EU – there are various treaties and conventions, and probably a lot of sticky tape and string. The EC isn’t in a position to turn it upside down through attempting to mandate preservation in this way. That’s especially the case when they believe that consumer protection law already deals with the core issue (in SKG’s eyes) of consumers being misled.

* Technically, what you think of as ‘the game’ itself isn’t a single copyright work, but is a whole teetering pile of individual works – the code, music, script, v/o recording, graphics (frame-by-frame) etc etc etc. This is another reason why accidentally upending everything by mandating preservation would be a nightmare.

What are those existing protections?

For one, the well-established Unfair Commercial Practices Directive (snappy) sets foundational principles, broadly summarised as “don’t mislead consumers into making a transactional decision by saying something that’s untrue or omitting something important.” End-of-life policies could be captured under this; if consumers were led to believe something that would reasonably affect their decision to play* the game, that would be misleading. However, this doesn’t necessarily mean that “WE CAN REVOKE ACCESS” needs to be plastered across every poster – it’s about the whole customer journey and their expectations.

Another handy bit of EU law, and the most aligned with SKG’s position, is the Digital Content and Services Directive, which provides consumers with legal remedies if digital content doesn’t conform to the contract (including being discontinued without proper justification). That may mean that if a game is sunset in a way that doesn’t accord with consumer expectations or understanding (obviously this is context-dependent) then there could be consequences for publishers, such as requirements to dole out refunds. By the end of the year, the Commission is expected to publish a report on the application of this directive.

*a ‘transactional decision’ isn’t just about purchasing – downloading a free-to-play game is a transactional decision, and so is deciding to go and look at the store page on the basis of a trailer you saw.

What’s next?

While legislative intervention has been taken off the table, the Commission has committed to alternative regulatory measures to protect players.

By the end of this year, the EC will launch a formal dialogue with the video games industry and consumer representatives. The goal is to draft an industry code of conduct that clarifies how games should be managed at their ‘end of life’ and establishes clear shutdown standards that protect player communities. We’d expect it to include guidance on how the existing consumer protection framework could apply to these issues, but we don’t think it’s likely to be legally binding.

The Commission also expects that increasing enforcement of existing consumer rights will incentivise publishers to design games with longer lifespans and explore community-led solutions that meet player expectations. In combination with the DCSD report mentioned above, this could signal increased scrutiny on compliance with current standards.

What’s going on elsewhere?

In the UK, SKG’s official petition demanding mandatory end-of-life plans for video games gained enough signatures to secure an MP debate on the issue. The government spokesperson concluded the session by saying that no new laws were necessary, but that they would ask the Chartered Trading Standards Institute (CTSI) to develop new best practice guidance on consumer rights for digital content (not just games). A formal consultation on this guidance is expected soon.

California has been pioneering legislation, starting in 2024 with the enactment of Assembly Bill 2426 (AB 2426) to require digital storefronts to explicitly disclose that a transaction is a restricted license rather than an outright purchase. At the beginning of this year, Assembly Bill 1921 (AB 1921), also known as the Protect Our Games Act, was introduced. This would require publishers to give a 60-day warning before shutting down server-dependent games and force operators to provide either an offline-playable version, a community patch, or a full refund. However, although the California State Assembly officially passed the bill, it was voted down by the State Senate.