Stalemate Over Chess Broadcast Rights Tom Platt looks at an interesting copyright issue arising from the commercialisation of the burgeoning sport of professional chess.1 Over 200 million people tuned in to However, the nature of chess means Champion, prior to his 1886 match watch Magnus Carlsen, the ‘Mozart that the spectacle of a chess game with Johannes Zukertort, inserted of Chess’, win the Chess World is not entirely captured by these a clause into the match contract Championship from Viswanathan traditional broadcast components. All providing that the “[p]roperty right Anand in 2013. With top chess you need to follow a chess game are in the record of all games played in players becoming younger and more the moves. As the November 1905 the match shall insure to each player, marketable (Carlsen moonlights as a edition of Lasker’s Chess Magazine who shall have the separate right noted, “[c]hess differs from other of publishing any or all the games and chess participation growing things in that the score of a game during the match”.6 This went against rapidlyG Star Raw in China model and in India,his spare these time), adequately and absolutely represents the understanding of the day, with everything that transpires over the the International Chess Congress in However, the potential commercial board.... Where is the reporter who 1899 noting “[w]e do not profess to valuefigures of will this likely interest only is increase. unclear, with could really convey a tithe of what be lawyers, but we have yet to learn the chess world having reached a that a spectator reproducing a game stalemate over the scope of the right from memory is guilty of any breach to broadcast a chess game. concerttranspires room on theor the football theatre?” field,3 the of copyright.”7 cricket field, the billiard table, the In November 2016, Carlsen On this basis, it has been common There are several reasons why the successfully defended his World International Chess Congress’s view remains appropriate today.. Chess Championship title against Russian websites to report on live games by moves are made according to the rules challenger Sergey Karjakin.. Ahead relayingpractice (untilthe moves now) as for they chess are played onto graphical chess boards. It is this of the game and therefore are unlikely practice that Agon is attempting to to constitute a work of authorship. desof the Échecs event, the official broadcaster stop, seeking to restrict websites from Agon number of possible moves suggests announcedof FIDE (Fédération its intention Internationale to strictly relaying the moves until two hours Thethat ‘discovery’a chess move of ais move inherently from a‘factual’. finite enforce its ),“exclusive Agon Limited rights ( to ), after the end of each game. In the As has been argued elsewhere, “chess broadcast the games”.2 In any other April 2016 Candidates Tournament (where the challenger for the World parameters… yield abstract concepts sporting context such a statement that are discovered rather than would not be controversial. Subject created… [and] one cannot legally (by to prior agreements, an organising threatened four chess websites body ordinarily has the prima facie (Championshipthird party websites was decided), Agon proceedings if they continued to relay rights to license (on an exclusive 8 the moves live. With one) with of the legal third chessof those terms) rules.” make By contrast,or create annotatedmoves on thechess board games that (where fall outside players the add confines their create and broadcast a video stream, party websites having declared its 4 analysis of the game alongside the commentary,basis or otherwise) and related a third content party to intent to continue its live coverage, such as press conferences. This and Agon publishing a legal ‘white 5 likely to be protectable. conventional understanding was paper’ to justify its position, it appeared that the issue would again notation of the moves) would be more recently applied in England And Wales The third party sites argue that come to a head again in November. Cricket Board Ltd & Anor v Tixdaq relaying the moves of a game is Ltd & Anor equivalent to an online newspaper with Justice Arnold holding that the Copyright in a chess game publishing a rolling feed of a live publication [2016] of 8 second EWHC video 575 clips(Ch), Agon’s claim has renewed a long football game, updating readers on infringed the copyright in cricket debated topic of whether copyright the score and the progress of play. broadcasts owned by the England can subsist in a chess game. Wilhelm They argue that Agon’s claim to be Cricket Board. able to restrict reporting on and Steinitz, the first ever Chess World 1 Tom is a lawyer in Gilbert + Tobin’s Intellectual Property group. 2 Agon, ‘Agon Ltd Commences Legal Action Against Chess24, InternetChessClub, Chessgames and Chessbomb For Breaching Broadcast Restrictions’, 12 March 2016, available at: <http://www.agonlimited.com/news/2016/3/12/agon-ltd-commences-legal-action-against-chess24-internetchessclub-chessgames-and- chessbomb-for-breaching-broadcast-restrictions>. 3 Lasker’s Chess Magazine, November 1905, p 34. 4 Chessdom, 3 March 2016, ‘AGON’s new policy puts the Candidates Tournament idea in jeopardy’, available at <http://www.chessdom.com/agons-new-policy- puts-the-candidates-tournament-idea-in-jeopardy/>. 5 Shekhovtsov & Partners, White Paper on Commercial Value and Protection of Exclusivity of Chess Moves during Broadcasts, available at <http://static1. squarespace.com/static/52cd2778e4b0b02edf9e4eed/t/56da18f8555986bc67eaae2d/1457133816887/white_paper_position.pdf>. 6 Chess Monthly, January 1886, p 136. 7 Illustrated London News, 20 May 1899, p 726. 20 Communications Law Bulletin Vol 35.4 (December 2016) fan discussion (including on social only enforceable against the website both found to have expended user and does not create any cause progress, goes much higher than the of action against a third party information themselves and therefore media)right enjoyed of the bygames broadcasters while they in are other in website that has merely received significantwere not held resources to be free in collecting riding. the sports. This appears to be the case. the information. And second, if a third party website begins relaying For Agon, it is tempting to think that moves and the freedom of individuals the moves, it will be practically the relaying of chess moves can be Dueto publish to the news‘factual’ (and nature in this of context,chess impossible to identify the user who distinguished from both of these scores of a football game, or moves has breached the agreement. cases. The third party websites copyright will allow Agon to sustain ‘Hot news’ doctrine of resources, they are simply relaying inits aclaims. chess game), it is unlikely that misappropriation arethe notmoves, expending and they significant indeed appear to be reducing Agon’s incentive Click wrap agreements to broadcast the information. attempting to protect its broadcast However, Agon would likely face Agon acknowledged the potential Theis under final the ground US ‘hot on news’which doctrine.Agon is For this reason, Agon chose New York through copyright and noted in state as the applicable jurisdiction difficultiesare not expended invoking for the the doctrine. purpose Theof difficultyits White ofPaper protecting that the its use broadcast of governing its click wrap contract. significantbroadcasting costs the expended moves, but by rather Agon “additional legal tools” will be Agon claims that its broadcast clearly “absolutely necessary”.9 To this for the purpose of holding and end, Agon has inserted a click wrap hosting the event. Indeed, the cost doctrine, being: of actually broadcasting the moves agreement on its website that users satisfies the five elements of the are required to accept as a condition i. the plaintiff generates or gathers is negligible and is almost entirely to viewing the broadcast. Clause 7 information at a cost; accomplished by the chess boards themselves, which track and relay the of the agreement inserted on the ii. the information is time-sensitive; website for the April Candidates moves electronically. Tournament provided the following:10 iii. a defendant’s use of the information constitutes free riding Breaking the stalemate By using this website you expressly on the plaintiff ’s efforts; In 1899 the world’s greatest agree that the information about iv. the defendant is in direct comp- chess players (including Wilhelm chess moves of the fide 2016 etition with a product or service candidates tournament games offered by the plaintiffs; and Chess Tournament. The tournament is expensive to gather and time- Steinitz)organisers played received in the £70 London from sensitive and that uncontrolled v. the ability of other parties to free- newspapers for the right to publish copying of this information ride on the efforts of the plaintiff the games.13 While the value of this during or shortly after the end of or others would so reduce the right may have since increased, respective chess game may reduce incentive to produce the product come November, the onus will be on the incentive of the company to or service that its existence or Agon to show that the legal position organize similar events in the quality would be substantially has changed. Agon has played a future. You further agree not threatened. gambit, resting its case on click to publish any information The doctrine has been relevantly wrap agreements and the ‘hot news’ concerning the chess moves of considered twice in recent years by doctrine. But like most gambits, the candidates tournament 2016 the United States Court of Appeals although we are only just out of the chess games during such games for the Second Circuit. In National ‘opening’, Agon’s position is looking and within two hours after their Basketball Association v Motorola dubious.