This post was written by Braydon Massoud. He currently is knee-deep in tax law and couldn’t get access to post, so I’m posting for him.
Hi everyone, in choosing which topic to write about I decided to pick chess, because it feels like a fun case study in which to apply the copyright laws we have learned.
Chess is an ancient game which originated in India as a variant known as ‘chaturanga,’ before making its way into Persia, and then being spread by Islamic conquest to Spain and Italy. The game quickly took hold in Europe, where it evolved fully into the game we know today.
Chess is a sort of battle between two players, bound by the limits of an 8×8 board and 16 pieces. In essence, the game is strictly mechanical and mathematic; however, the astronomical number of possible games that could be played (at least 10^120 according to American mathematician Claude Shannon) means that humans play the game by making qualitative judgements of their current position. For example, a player may place their horse on a certain square not because they have calculated the mind-boggling number of possible variations that will ensue from the move, but because they have formed a judgement based on theory and experience that such a move is generally good. Of course, a better player will know when generally good moves are bad, which is once again more down to judgement than calculation. Though most chess playing computer engines use brute force calculation, they are still far from capable of calculating to the end of the game and rely on inputted qualitative metrics by humans. AI chess engines such as Alpha Zero are more exciting in the way they compute, but I won’t get into that here.
In summary, chess is a finite and logically bound game of which there are more possible games than atoms in the universe. Perhaps you may have initially balked at the suggestion, but now you might see why chess is sometimes considered an art. Indeed, the period stretching from the Middle Ages to the late 19th century of Europe was known as the romantic era of chess play. Though calculation and logic were of course huge factors in play, the actual winning of the game was considered to be less important than the style in which the game was won. If you can follow the basic moves of chess, you should check out the Immortal Game played in 1851 (https://www.youtube.com/watch?v=AaKWUiiEHgA), to have your mind blown and see what I am talking about.
I already knew the answer as to whether games of chess could be copyrighted, but I was still disappointed that the answer is so obvious that there is hardly any discussion of it beyond online chess forums. I did find a few relevant historical notes that the organizers of the first international chess tournament claimed copyright of the games on the justification that their recording and publishing of each game was done at considerable expense (the sweat of the brow theory of copyright we saw in class). Half a century later, world champion Emmanuel Lasker made regular attempts at copyrighting his games, to no avail.
The reason why publishers of chess games can’t claim copyright is analogous to the reason the publishers of legal cases can’t copyright the actual decisions; the reproduction is a purely mechanical exercise (from the CCH v Law Society case). But could the players of a game, especially in the romantic style I spoke of above, claim joint copyright?
Section 5 of The Copyright Act lists the works protected by copyright. If I were to argue for copyright in chess, I would attempt to pass it off as choreography. While definitionally related to dance, the court in the Joint Sports Claimants case considered whether the term could include sporting events. Before going into the meaning of choreography, I will first go into the general requirements for copyright. First, a work must be original, which generally means choosing between possible forms of expression. Given the choices made during chess lead to one game out of the 10^120 possible games, surely the originality requirement is met. The other requirement is that the work is fixed in a tangible form, which will be met when chess players record the moves of their game (which is typically required during official matches).
Now we come to the interesting part of the analysis. Could a chess game be copyrighted as choreography under section 5? Joint Sports Claimants decided that a football game was not a choreographic work because despite the high amount of planning that goes into writing a play book and training a team, ‘a sporting event is for the most part a random series of events,’ as opposed to a dance where, barring accidents, the performance is precisely what was planned. Curiously, this definition seems to preclude improvised dance from copyright, which may be unjustified since the authorship and creative choices simply take place during the performance as opposed to before.
Though chess openings are sometimes planned as much as 15 moves deep, it is clear that the game does not meet the court’s requirement for planning and predictability for a work to be protected as choreography. However, even if chess could be considered choreography, and as much as I would love for the court to recognize it as the creative art that it sometimes is, this is not the purpose of copyright law and it would be bad for the game as a whole for games to be copyrighted. As the court noted in NBA v Motorola, the protection of a sporting event or sports moves impairs the underlying competition in the future. Though chess positions are unlikely to be exactly replicated, the restriction of the publication of games would greatly restrict use for learning and entertainment purposes (though learning may be protected by fair dealing).
I was not allowed to copyright my games
Communications Law