Living in the past: How Australia’s 20 year old classification laws are in desperate need of repair

Our Legal and Policy Counsel, Josh Cavaleri recently penned a 3 part feature on Australia’s broken classification system  and the urgent need for repair for ABC Tech and Games.   The post in it’s entirety can be read below:

The current scheme is underpinned by a number of principles, including that adults should be able to read, hear, see and play what they want; and minors should be protected from material likely to harm or disturb them.  But as we increasingly move towards a ‘digital’ world, these two key principles are no longer being fully met and Australia’s process for classifying games is becoming outdated.

Before any game is sold in Australia (in theory at least), game developers and distributors must go through a rigorous process of:

1. Completing and submitting a number of prescribed forms and documents along with a copy of the game and a separate recording of any contentious material.
2. Paying a classification fee ranging between $430 and $1,210 per game.
3. Once submitted, the Classification Board (currently made up of 8 members that are, in theory at least, representative of the Australian community) reviews the materials submitted and determines the classification for the game. The decision is made within 20 working days.

When the current classification scheme came into force in 1996, 512 games were classified by the then Office of Film and Literature Classification. Since then, the OFLC and later the Classification Board has classified an average of 755 games per year (let’s remember at this time there was only a handful consoles and handheld devices with no online gaming at all).

While some would argue the original process of classifying games has worked relatively well for the 750-odd games that have been released each year since the scheme was introduced, it’s clear the process simply was not designed nor does it work for the thousands of games that are released each year through the digital space.

148Appz.biz reports that 41,713 iOS games were released on Apple’s App Store in 2012 alone (an increase from the 30,294 iOS games that were released in 2011).  Can you imagine the 8 members of the Classification Board increasing the amount of games they review from 750 games per year to over 40,000 games per year? And these figures don’t even include the many other types of games and distribution platforms such as Steam, Android, Sony Mobile and Windows Phone.  Not only is the classification process intensive and costly for businesses, consumers can now access a huge volume of digital games which are not going through the proper classification channels and potentially providing mixed classification messages.

In order to make any changes to the scheme, the unanimous approval of all states and territories is required. But as representatives from the states and territories generally only meet twice per year to discuss classification (amongst other issues), it is incredibly difficult for the scheme to adapt to the demands of consumers and the industry. The 10 year journey to introduce an R18+ classification is just one example of how the classification system is failing to accommodate the demands of a constantly innovating games industry.

Currently, Australia sits alongside Germany and Brazil as being one of the few territories where classification is led by Government.  As the amount of games that are being developed and sold through digital channels continues to grow exponentially and move well beyond the imagined scope of the current classification scheme, it’s clear that we need wholesale changes to our classification scheme.

PART 2: How does our ‘broken’ classification system impact individuals and businesses?

While in the 90s the approach to classifying computer and video games aligned relatively well with the centralised distribution model used by publishers and distributors at the time, it’s no longer the case.

With 92 per cent of all Australians owning at least one device for playing games (such as a tablet, PC, smartphone or console) and nearly 40 per cent of gamers now purchasing content online[1], it’s time to seriously re-evaluate Australia’s 20+ year old classification system.  More specifically, here are three reasons why Australia’s approach to classifying video games is failing individuals and businesses:

Mixed messages for classification information

In order to protect children from material likely to harm them, inform parents and caregivers and to ensure people aren’t exposed to unsolicited material that they find offensive, Australians have traditionally relied on the classification information imposed by the Classification Board. This information is in accordance with the Classification Guidelines and includes prescribed markings (classification labels) as well as consumer advice (e.g. strong sexual references, mild violence etc.).

But as new digital storefronts and platforms emerge, the classification process has been decentralised with many businesses choosing to provide their own classification information instead of using the classification indicators with which Australians have become accustomed.

For example, first person zombie shooter DEAD TRIGGER is available on a number of platforms and storefronts, including iPhone’s App Store, the Appstore for Amazon’s Kindle and Google Play for Android. While DEAD TRIGGER is classified ‘17+’ on Apple’s App Store, it’s labeled ‘Mature’ on the Appstore for Amazon and ‘High Maturity’ on Google Play. This decentralised approach requires users, including parents, to leave behind the familiarity and trust of the Australian classification markings and struggle with a variety of new classification systems, labels and types of consumer advice.

Any one of the thousands of games that are available on Apple’s App Store or Google Play that are not classified by the Classification Board is further evidence of a scheme that has not adapted. Ultimately there is no difference between games which appear on platforms, be it online, mobile or console – yet some are classified and some are not, making it almost impossible to know what is suitable and what isn’t.

This inconsistent application of the current scheme undermines its effectiveness and can send confusing messages to parents, disregarding the original purpose of the classification law, to protect minors “from material likely to harm or disturb them”.

Some games, including Australian developed games, are being withheld from Aussie gamers 

While some businesses continue to sell unclassified games over the Internet, other businesses simply aren’t willing to run the risk of potential non-compliance with Australia’s classification laws.  As a result, many digital exclusive titles are not being released in Australia and Australians are being withheld access to games which are readily available in overseas markets.

Between PlayStation 3 and Vita’s online stores, there are at least 63 games that have not been released in Australia due to classification requirements. XBOX Live’s Indi Channel, comprised of almost 3,000 independently developed games, is not available in Australia – a decision also likely attributed to the prohibitive cost of compliance with Australia’s classification laws. What is most unfortunate is that some of these independently created games have in fact, been developed by Australians and are unavailable in the developer’s home country. While in 1991 our laws started to move away from censorship towards classification, a pseudo-censorship outcome has now emerged with the scheme’s application on digital content preventing Australian’s from accessing a growing category of content.

The Local games industry is unable to expand its businesses compared with overseas markets and operations without risking a breach of the current classification scheme

Australian game developers and distributors are placed in a difficult position while navigating Australia’s broken classification system – should they wear the cost of compliance, withhold product or completely ignore Australia’s classification scheme? The massive scale of digitally delivered content, the relatively high cost of classification and Australia’s small percentage of the global market makes this position even more difficult.

According to Bruce Thompson from Sydney based developer Nnooo, indie developers can sell a game in the Americas (with a population of about 1 billion) for no ratings fees, yet in Australia (with a population of 23 million) where only 2 per cent of the company’s revenue is generated, it costs $430 to classify a game. (His full quote can be found here.)  Compared to overseas markets, it’s clear that Australian businesses are at a disadvantage.

PART 3

By now, it’s clear Australia’s current classification scheme is rigid, expensive and simply struggling to keep up. In fact, when the Australian Law Reform Commission conducted a comprehensive review into our classification system in 2011, they fully acknowledged the need for a new system that is sufficiently flexible and nimble enough to adapt to rapid technological change.  One of the most significant recommendations put forward by the ALRC was a call for the interactive entertainment industry to play a greater role in, and take more responsibility for, classifying games.

Two years since the recommendations were made, our Government is now looking to implement a ‘pilot program’ to automate the processes around how mobile and online computer games are classified (more information can be found here).  It’s a great first step, but more needs to be done. In particular, we need an industry led classification system than can address the shortfalls of the current system.

There are some people who oppose the idea that industry could partner with Government to help regulate content as they believe the industry can’t both adequately support its members and act in a socially responsible manner.  But it’s important to realise that a similar model is already working well locally and internationally.

Free TV, an industry body that represents all of Australia’s commercial free-to-air television channels, has successfully worked in conjunction with ACMA for over 20 years to manage content standards for television broadcasts. This industry-led model has empowered the free television industry to develop codes of practice for content standards that are ultimately enforced by Government – and the same success could be shared by the interactive entertainment industry.

Furthermore, industry bodies are already effectively self regulating the classification of games in the United States (through the Entertainment Software Rating Board – ESRB) and throughout most of Europe (through the Pan-European Game Information – PEGI).

As we continue to propel into the next generation of interactive entertainment, I would like to leave you with some of my observations and predictions which I believe will only further highlight the need to overhaul Australia’s classification system:

1. Convergence is key – Today, Australians are already able to seamlessly enjoy game experiences on multiple devices, including phones, handheld consoles, computers, game consoles and TVs. In this converged world, trying to regulate a game on a platform basis will be impossible.
2. Developer focus – While we will continue to enjoy big budget blockbuster titles, we’ll also increasingly seek access to a huge range of independently developed games on all our devices, not just our mobile. Our classification system needs to accommodate the massive range and high frequency of such games for all platforms, not just mobile and online.  In addition, if the rest of the world can enjoy a game created locally, then Australians should be able to access the game too.
3. Digital distribution – Our devices will be connected to the Internet and we’ll have access to a range of digitally delivered and Internet enabled games and business models. We’ll also be able to subscribe to a growing collection of digital games, download demos or episodes of games, and seamlessly make micro-payments for in-game content.
4. Innovation – The interactive entertainment will continue to innovate both games and business models. We already have virtual reality goggles, motion capture, game streaming and augmented reality.  Can you imagine the innovations that will drive the industry over the next decade?
5. New consumer concerns – New innovations will naturally bring a new wave of concerns to the table.  Apart from traditional content concerns such as sex, violence and drug use, parents are also increasingly concerned with other factors such as geo-location, in-app purchases and social networking functionality (all of which are not covered by the current classification system).

We need a new, nimble and future proof classification scheme for Australia that can handle the above points and more. It is imperative that the ALRC’s recommendations are reviewed and that an industry led classification system is implemented if Australia hopes to remain competitive in an age of rapidly evolving interactive entertainment content.

By Josh Caveleri, Legal and Policy Counsel for the Interactive Games and Entertainment Association (IGEA) 

Josh joined the peak body for the interactive entertainment industry as Legal and Policy Counsel in 2012.  He works with companies that publish, market and distribute interactive content in ANZ to address legal and policy matters including game classification, copyright, privacy, cyber safety, consumer law, international trade and content standards. Josh’s interest in the games industry is linked to his lifetime fascination of interactive games evidenced by his continuously growing collection of games and game hardware.