Abandoned works are a huge problem —not just for games— and since copyright periods keep getting extended, it's not going to get any better. Current laws
are failing — badly. In a digital age, having so much stuff legally unavailable even though it would cost almost nothing to make it available digitally is ridiculous.
Very recently, a new law was passed (unanimously) in France that may be a fantastic first step in the right direction. It's about out-of-print 20th-century books. The new law creates a new system centred around a public database of abandoned books, i.e. copyrighted books that are both out-of-print and without a digital edition. Anyone can request that a book be considered for inclusion in the database. If the book is found to have been abandoned, and the author does not oppose re-publication of his book, then the original publisher has the option to create and sell a digital edition. If they refuse to do that, then the book is considered legally abandoned, and other companies can get a non-exclusive, renewable, 5-year licence to publish a digital edition of the book, provided at least half of the proceeds go to the author (it's much more technical than that, but that's the gist of it).
There are still some kinks that need to be worked out, especially regarding translated books, and some authors are getting all mad at the fact that it's an opt-out system for them rather than opt-in (because heaven forbid that their books be re-published without their explicit consent; it's so much better if they remain out of print and forgotten forever...
). But I think it's a great first step.
Imagine something like that for games. You stumble upon a fantastically-written review of The Lost Files of Sherlock Holmes on AdventureGamers.com, and wish to play the game. You can't buy a new copy anywhere, so the game gets declared abandoned. If the original publisher, EA, decide that they don't care about some little thing worth less than $100m, then companies such as GOG can be allowed to publish and sell a digital version of the game, with a share of the money going to EA and possibly the developers. And new players get to play the game for a reasonable price. Everybody wins!
As I said, we'll have to see how the system works out in practice, but I think something like that is badly needed — and I believe that it will happen eventually.
Of course, until then, there's abandonware and the great hypocrisy surrounding it. (Not that I'm blaming AGs for covering their backs; they have to do that, obviously.)
