The European Commission may be about to throw the entire game design process into disarray in announcing its intent to enforce a two-year ‘guarantee’ on games.
Under the EU Sales and Guarantees Directive, physical goods have to be in line with certain commercial conditions. The directive states that “sellers of consumer goods within the EU are obliged to guarantee the conformity of the goods with the contract for a period of two years.”
The infinitely complex concoction of code, shapes and sounds we call videogames are exempt from this condition, yet EU Commissioners Viviane Reding and Meglena Kuneva want this to change.
"The current status quo, where licensed products are exempt from EU law, is unsatisfactory," said Helen Kearns, spokesperson for Commissioner Kuneva.
Like all interpretable laws, the EU Sales and Guarantees Directive could mean that consumers have the right to get a refund on games if they are deemed faulty. Therefore, a glitch in a game that could be argued as having a significantly detrimental effect on the play experience could be eligible for refund within 24 months after the sale of the game.
Kearns did accept that such a ruling would give consumers more opportunities to abuse the system. "On the one hand there is the risk of abuse,” she said, “but on the other it's not a good enough reason to say basic consumer protection should not apply."
The whole process could lead to a radical shift in the design process, the second-hand market, and even retailer-publisher relations.
If the accident-prone Driv3r was released under these conditions, for example, the game would be more likely to be refunded than end up in the pre-owned bins. Consumers would also have the right to get a full £40 refund 23 months after the game's launch; at a time when the its trade-in value would be below a quarter of that price.
This in turn could lead to retailers avoiding stocking games known to be of questionable quality, which in turn would lead to publishers seeking more vigorous testing from developers.
This could lead to a powerful constraint on what can be released without fear of refund, meaning that ambitious projects may not find support. It could also mean that many publishers and developers will turn to digital products, where these rules are not likely to apply.
The Business Software Alliance (BSA) told the BBC that such proposals are broken.
“Digital content is not a tangible good and should not be subject to the same liability rules as toasters,” said Francisco Mingorance, the BSA's director of public policy.
(It should be noted that the games industry’s coinage of digital content is not the same as the mass media’s, which uses the term to describe game content in general.)
“[Games are] contractually licensed to consumers and not sold,” Mingorance added. "These contracts are governed by civil law that provide consumers with multitude of remedies for breach of contract."
Tiga CEO Richard Wilson took a more diplomatic view.
"Consumers need good quality products - that is only reasonable - but if the legislation is too heavy-handed it could make publishers and developers very cautious. Games takes years to develop and software teams often have to predict what new technology will be in place when the game is actually finished,"
He added that the EU Commission has to be careful not to suffocate new ideas. "If there is an onus on developers to have software that is 'near perfect' then it could stifle new ideas as people could end up just playing it safe," he said.