Digital Heritage: Legal Barriers to Conserving New Zealand’s Early Video Games

National libraries, museums, and archives have traditionally preserved non-digital cultural entities for future generations, supported by laws permitting them to override legal rights of owners of cultural works in the public interest. As much of today’s cultural material and information is created digitally, nations are being urged to develop appropriate policies and cultural property laws for the digital age so that digital entities can also be preserved and kept accessible for the future. Complex technical requirements, powerful economic interests, and significant legal barriers, however, need to be resolved. In the meantime, the earliest digital entities are in danger of being lost. This article explains why New Zealand’s early video games, created in the 1970s and early 1980s, are an important part of our digital cultural heritage and should be preserved for future generations. It examines the complex copyright environment that is an obstacle to preserving early New Zealand video games for cultural heritage purposes and explains why it might not be possible to obtain the necessary consents of the copyright owners of such video games. The article considers provisions in the National Library of New Zealand (Te Puna Mātauranga o Aotearoa) Act 2003 and proposed amendments to the Copyright Act 1994 that are intended to facilitate digital archiving and warns that these may not be adequate. Finally, it suggests appropriate amendments to New Zealand’s cultural property law as well as interim measures to facilitate the preservation of early video games as digital heritage.