Should chess moves be subject to copyright?

There has been a controversy:

Last week, ChessBase was apparently ‘forced to cease Internet broadcasting of the Topalov-Kamsky match’. As we noted
in our report on the first match game, live broadcasting of the chess
moves in this match without permission was prohibited by the Bulgarian
Chess Federation (although they didn’t seem to have a problem with
Chessdom’s, Crestbook’s, ICC’s and TWIC’s live coverage). This has led
to heated discussions on this site. The key question here is: can you copyright a chess move at all?

Plus this is transmission over the internet, so which law applies?  As I understand U.S. law, you can put chess moves into a book and the players have no rights to residual income from that book.  Which is how it should be.  Transferring income to chess players is not a goal per se.  Useful chess books usually contain many games, and requiring rights permission would make the volume harder to assemble.

Maybe grandmasters would play more games, or play better games, if they could charge for rights of reproduction.  When it comes to playing more games, I suspect there is already an ample supply of games and easy reproduction will do more to increase real consumption than spurring more contests over the board.  If anything is underproduced, it is the salience of the games which have been played (take a game between two 2550 players and call it "Clash of the Titans" and produce more excitement; most chess players won't know the difference between that and a game between the two best players at 2770.) 

And better chess?  I believe the effort elasticity is low with respect to residual rights income from reporting of the games.

Comparable debates have been held over residual rights to reporting real time stock prices and NBA scores.

Comments

No, they are a public good and should be provided by the government.

Obviously, the live performance and broadcast are subject to copyright. While the individual moves shouldn't be, there is a long-standing exemption for "hot news" (this recently re-arose with the Associated Press case a few weeks ago).

The argument would be that, if someone is "reporting" the chess moves in real-time, this would violate the Chess Federation's priority reporting rights... If ChessBase was reporting moves well after the fact, copyright issues probably wouldn't arise, but given the time proximity, it isn't as unreasonable as it might seem.

Perhaps Wille Mays should have patented the "basket" catch, or Stan Muscial should have patented his batting stance.

The "hot news" misappropriation in the recent AP case fell under NY unfair competition, though, rather than copyright infringement; the news doctrine in the older AP case is no longer binding on federal courts and has been mostly replaced by state laws. But ChessBase is based in Germany anyhow, which generally has broader copyright protections to start with than the US; I have no real idea what unfair competition type laws look like there.

The moves themselves, in a sane universe, should be no more subject to copyright while the game is ongoing than they would be some time afterward (which I'd say ought to be none at all). I worry at expanding interpretations of intellectual property protection to cover things that should really be separate (unfair competition, privacy rights, defamation, etc.)

Somewhat analogous to the chess game is Cricinfo 3D, a machine-animated re-enactment of cricket matches at a slight delay while the game is ongoing -- it looks like they were never even sued by the broadcaster despite speculation in the news.

@hayek:

After BCF shut down Chessbase' relays, people could still follow the games live for free on the official site - it was only on Chessbase you weren't allowed to watch the games, and discuss them with other chessplayers, for free.

Of course, these days this is not necessarily a copyright issue at all. A lot of what people call copyright amounts to control over the means for distributing content, especially (through the DMCA) the Internet and broadcast channels.

I want to think of the resolution to the problem of factual reporting on creative work as one of nested levels. "Stephen King wrote [text]" is obviously a fact. But [text], itself, is one level down from the fact you're reporting, and can itself be protected by copyright even though the fact about the action, one level up, can't be. The copyright analysis is then done for each level separately -- of course the fact that Stephen King said something is not protected by copyright. But the creative work you wish to quote, when analyzed independently, would be. Most quotations are either de minimis or are defensible under fair use, while quoting a more significant chunk of a novel may not be.

To establish copyright over a chess move wouldn't a player have to prove that they were the first person to make that move? With billions of games played just how would they do that?

There have also been arguments over the real-time reporting of golf tournament scores.

Also, not only is novelty not a requirement for copyright -- being fixed in some medium is one. The millions of games before that were never written down or recorded on tape don't have any protection even if recorded games do.

So if chess games can be copyrighted, how about the right to make derivative works? If you play a game using a copyrighted opening, does it make sense for the creator of that opening to then have a claim on publication of the game you played?

More arguments against: part of the justification for copyright's expansive protection of an individual work is that since it only protects the particular expression of an idea and not the idea itself (which is a sometimes vague an unhelpful distinction, yes), you can express the idea differently if you want to use it. (Whereas patent is more limited, since the idea itself is protected.) But it doesn't seem to be meaningful to play a chess game using the ideas underlying a particular game without playing that particular game.

You might also argue that the moves' primary purpose is functional, rather than creative: the moves were all taken toward the functional end of winning the game; all of the elements of the move were to that end and there is no creative portion you can separate from it that itself would qualify for protection. The purely functional portions would not be copyrightable in the US.

(OK, now I've spent way too much time on this topic for someone who doesn't even like chess.)

Am I wrong to imagine that many chess games duplicate prior games? Even if moves are copyrightable, if someone else has already made that move...

If live broadcasting of chess moves in this match was prohibited by the Bulgarian Chess Federation then this
has to be respected. Of course you can't copyright chess moves. This is ridiculous then no one could play the same moves that other player have made before.

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