Before you play, “check” if you’re infringing copyright

Wednesday 13th April 2016

Recent efforts by the broadcasters of the world chess championship to restrict access to progress updates during match play highlights some interesting financial and product development dilemmas due to copyright issues. 

First, some background: chess is played and followed by millions in practically every country in the world. It also has an extensive specialist literature, and is the playground for innovative sophisticated computer software.  This seems like a good basis for a high profile professional competition, and lucrative broadcasting rights. Well, not necessarily...

Unlike other professional competitive events, chess remains relatively cash-poor at the highest level. Other than the famous 1972 Spassky vs Fischer world chess championship match, and a mid-1980s musical that spawned Murray Head's song "One Night in Bangkok", top level chess lacks cut-through beyond an already-dedicated fan base.

In an effort to financially leverage off their product, Agon, the owners of the matches, have asserted their exclusive rights to broadcast the moves during games, which can take up to five hours per day to play. With any other competition this is straightforward - broadcasters gain royalties from selling exclusive footage to other media outlets. The royalties provide the means for broadcasters such as, Agon to invest in the development of the sport. England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor [2016] held that eight second cricket clips can infringe copyright in match broadcasts. 

However, the unique nature of chess highlights why Agon's efforts may struggle. Unlike when Dan Carter drops a goal for the All Blacks in a World Cup rugby final, spectators at chess matches, or those following online broadcasts or even viewing the recorded action in the days, months and years later don't actually "see" the same "playing field" as the players. Instead, every move is duplicated on diagrams that can be easily viewed, and then copied again on a computer, in a book, or with any physical chess set. Therefore, it is unlike rugby games where the right to watch the game is being sold to media outlets and the like.  Instead it is the rights to duplicate the moves that is being sold.

Irrespective of Agon's claim that they are seeking to lift revenues for the overall development of the game, the wider chess community has objected to the attempted restriction of their traditional free access to what happens on the board. Followers also argue that world championship games above all others provide the raw data that drives chess theory such as specific moves, which in turn improves their game. But if exclusive ownership over the moves can be asserted while a game is in progress, why not afterwards? This is problematic as it is unclear where exactly the rights end. 

Copyright protects the expression of an idea, but the idea itself must remain free. So if a player implements a new and advantageous idea, say, a bishop sacrifice on the c6 square on the white player's eighth move in the ‘Ruy Lopez' Opening, could the broadcaster "own" the move? Unlikely perhaps, as the effect will be the owning of the idea itself. Chess books would not be able to show diagrams of it and chess players will not be able to implement it in various different situations. Alternatively, if the rights were to be exercised only while the game is being played, why then restrict the knowledge or idea temporarily?

Agon will require a copyright in the actual chess moves. However, the copyright in the broadcast does not prevent others from creating their own boards and transmitting the moves. This is because as per paragraphs 96-98 in FAPL v QC Leisure [2011], there is no copyright in sporting events. 

Clearly for that ruling to apply, chess must be classified as a sport. However, even if chess was not classified as a sport, the effect of Agon having exclusive rights to the chess moves prohibits the free flow of ideas and competitive development of chess. Ideas and specific moves are almost indivisible in chess, so it is likely copyright cannot apply. 

This article was written by Sue Ironside and Mariyam Sheeneez.

This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.

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