Copyright

Shatranj ke Khiladi! (Can you copyright a chess move?)


shatranj ke khiladi

As the world, particularly India, watches with baited breath to see whether five-time World Champion Vishwanathan Anand would be able to reclaim his crown from Norway’s Magnus Carlsen, an interesting question crossed my mind, ‘Can a chess player copyright his chess moves?’ Even though this might not be desirable in the larger interest of sports, it is worth exploring whether it is theoretically possible to do so.

While I am quite sure that this issue has never been deliberated seriously before, one did come close to debating this topic during the World Chess Championship in Bulgaria in 2009; the Bulgarian Chess Federation had sought to restrain Chess Base (the world’s biggest online chess portal) from broadcasting the match in a text format without the permission of the organizers. Although a copyright infringement suit was successfully averted by Chess Base, which thought it neither worth its time nor money to fight a lawsuit, the incident gave rise to the question, “Can chess moves be the subject matter of copyright?” Some believed outrightly that a chess move is an idea and therefore, excluded from copyright protection (Copyright law protects expressions and not mere ideas).

Interestingly, a case similar to the Chess Base case arose in 2010 when Playchess.com was sued for copyright infringement. However, it is important to note that both in Chess Base and Playchess.com the issue of broadcasting of the games was brought into question. It is an established law in India that the organizers of a sports match/tournament have the right to broadcast those matches. Therefore, the question of copyrightability of chess moves remains largely unanswered.

Chess is purely a mental endeavour, unlike other indoor games like table tennis, carom etc.; this puts chess on a unique position when compared to other indoor games. Can one not argue then that the chess move is a creative expression of one’s mental skill and acumen? Most importantly, what would be the implications of giving a chess player a monopoly over his chess moves?

Assuming that chess moves form copyrightable subject-matter, it would inevitably lead us to the question of classification of ‘chess moves’ as subject-matter for the purpose of copyright. What sort of ‘work’ would a ‘chess move’ amount to? While it is hard to argue that a chess move may fall in the category of either a ‘literary work’ or an ‘artistic work’ or any other pre-determined subject matter under the copyright legislation, one could put forth a case that ‘chess moves’ constitute subject-matter not contemplated under the Act. Surely, the inability to fit into any particular category of work under The Copyright Act does not invalidate a claim for copyright altogether? A case in point is copyrightability of 3-D printed objects. All that one would need to prove then for a “non-conventional” entity to lay a claim to copyright protection is that the ‘work’ in question amounts to an expression.

While I understand that the popular belief gravitates towards this that a chess move is at best a mere idea thereby disentitled to copyright protection, I personally am of the opinion that the idea-expression watershed is hard to distinguish in this case. My logic might be askew here (and I am open to correction) but I think that one can argue that the chess move is the expression of an idea in a chess player’s head. The idea is how best to play the game so as to checkmate the opponent.

If again we allow the benefit of doubt in favour of this that a chess move passes the idea-expression barrier, the next question that we would explore is: Is a chess move sufficiently “original” to qualify for copyright protection?

This question would have to be answered on the basis of the skill and judgment test as laid down in the famous EBC v. D.B. Modak case. Given that chess is perhaps the most mentally challenging game to have been ever invented & players often burn the midnight’s oil lest they make a foolish move, I would say that there is a ‘minimum degree of creativity’ involved in the specific manoeuvres made by chess players.

Now that we haven’t altogether ruled out the possibility of copyrightability of chess moves, it would be worth-while delving into some of its implications. Inevitably, it would impact literature on chess, since many chess books contain famous games and the authors/publishers would necessarily seek the permission of the copyright-holder (in this case, the chess player) before using them in their books.

Secondly, as Tech Dirt notes, this would severely restrict chess as a game, because the initial few moves by chess players are generally common for everybody and copyrightability of the same would lead to absurd results…imagine having to “invent” an initial move for whenever you play a game of chess and how would you ever teach a beginner to play chess!

I also fear that if chess-moves are allowed to be copyrighted, it would open the floodgates for copyrighting all sorts of other sports moves. For example, David Beckham might try and copyright his famous ‘bend goal’. This means that every time a person tries to bend the ball like Beckham, he would do so at his own peril. Not only would this stifle sports in the country for good, it would lead to utter chaos in the name of protection of one’s IP rights.

Devika Agarwal

Devika Agarwal

Devika is a Policy Analyst at Nasscom. She first started writing on Spicy IP in 2013 when she was awarded the Spicy IP Fellowship, which sparked her passion for writing on IP. Devika is interested in copyright and technology law.

7 comments.

  1. AvatarChetan Sharma

    Chess as in most competitive games , the actions are not predetermined , they are usually a reaction to your opponents move, so basically the genesis of the move originates not in the mind of player who makes it but his opponent.Moreover it will be impossible to prove novelty in case of the move. Although successive a set of moves or maneuvers may seem creative they are almost impossible to replicate in a real game scenario. The very reason why an individual player might not push for getting protection for such moves. A similar case is that of “plays” in NFL which are a set of choreographed passes between players to score goals. On the question of whether such moves could be brought under IP protection, Copyright office clarified “‘a selection, coordination, or arrangement of functional physical movements such as sports movements, exercises, and other ordinary motor activities alone do not represent the type of authorship intended to be protected under the copyright law as a choreographic work.'”

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  2. AvatarShashank Mangal

    First of all, it is a wonderful exploratory post. Secondly, I think that even if chess moves were to be granted protection it would be better to cover them under performances, and to afford protection to them under S.38 (that is related rights), rather than bringing it under S.13.

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    1. Devika AgarwalDevika Agarwal Post author

      Thank you. That is actually a very good point, though I wonder if it is only music artists who are protected under performer’s rights as given under section 38.

      Reply
  3. AvatarJagdish Sagar

    With all respect, I feel that the notion of copyright protection for chess moves is far-fetched. A chess move is not any of the forms of copyrightable works in our Copyright Act (or presumably most others) nor under the Berne Convention–it is not a literary, dramatic, musical or any other kind of work. If represented in a book, it would come up against the merger doctrine. Nor in my view is it a performance within the meaning of our Act: the words “any other person who engages in a performance” has to be read ejusdem generis with the preceding examples: otherwise what would not be a performance?

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