Check, but not checkmate - Agon sues for infringement of broadcasting rights of chess match

The sports moves of the likes of Lionel Messi in football and Lebron James in basketball are the things of legend, and large sums are paid to secure the rights to broadcast their every sporting move. But what about chess? Agon Limited is the organiser of the World Chess Championship. The Candidates Tournament is currently being broadcast on its website, WorldChess.com.  Unlike other sports, the broadcast of a chess match is executed by near-instantaneously replicating players’ moves on graphic boards, as the players compete. Until recently, chess broadcasting was not policed, and many websites around the world would transmit the players’ moves without the event organiser’s permission. Based on a recent press release, Agon has taken a stance against this and has sued four websites that broadcast the live matches, claiming a violation of Agon’s exclusive broadcasting rights in the matches.

Agon has been criticised for its heavy-handed approach by fans who think that they are impinging on their enjoyment of the game in order to profit. This is so, despite Agon allowing the broadcast to be viewed for free. According to Agon, the decision to enforce their exclusive broadcasting rights is intended  to encourage sponsorship. As the Chief Executive of Agon stated:

“If we are to continue to grow the global appeal of chess for the benefit of all fans of the sport, we need to attract and retain further commercial sponsors. In order to do that we need to control how the World Chess Championship cycle is broadcast globally.”

This view is in line with WIPO’s explanation of broadcaster’s rights, which are meant to safeguard investment and recognise and reward entrepreneurial efforts and the “contribution to diffusion of information and culture.” Agon has made clear their intention to protect its rights, but what exactly is the extent of this protection?

It is not clear from the press release in which jurisdiction(s) Agon has sued and this post proceeds on the basis of UK law, which treats the contents of a broadcast as an aspect of copyright under s.1(1)(a) and s.6 of the Copyright, Designs and Patents Act 1988. Since Agon has exclusive broadcasting rights, they can stop rival websites from streaming their broadcast, showing clips of it and sharing screenshots, as this would infringe their copyright. Recently, Justice Arnold in England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor [2016] EWHC 575 (Ch) held that 8 second cricket clips infringed copyright in broadcasts of matches, discussed here in a Kat post.

Agon also stated that rival website Chessbomb had created an app that allowed spectators of live matches to leak the moves. It seems that Agon does not merely want to protect their broadcast, but also to prevent dissemination of the actual moves. The desire for this is based on the way that chess is viewed, compared to other sports. Viewers of a cricket match rely on the transmission of the match to enjoy it. In chess, viewers generally do not look a players hunched over the chess boards. Instead, the moves are displayed on graphic boards near-instantaneously.

Agon's copyright in the broadcast is of limited value if they do not have copyright in the actual chess moves. This is because the copyright in the broadcast does not prevent others from creating their own boards and transmitting the moves. According to para 96 - 98  Case C-403/08 FAPL v QC Leisure [2011], there is no copyright in sporting events:

"FAPL cannot claim copyright in Premier League matches themselves, as they cannot be classified as works. To be so classified, the subject-matter concerned would have to be original in the sense that it is the author's own intellectual creation (see, to this effect, Case C-5/08 Infopaq International [2009] ECR I-6569, paragraph 37). However, sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive. That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright." 

A new high jump technique

This Kat is not sure whether chess falls within the realm of a ‘sporting event’, but she agrees that chess moves, like sports moves, should not be subject to copyright. In reaching this view, this Kat does not rely on the reasoning of the CJEU decision in Case C-403/08 FAPL v QC Leisure [2011]. Indeed, contrary the CJEU opinion, much creativity is involved in sports in coming up with and executing new moves. Copyright should be denied, instead, on the basis that granting protection in these moves would be contrary to the point of competitive sport, namely doing  something better than your opponent. If  a chess move, or a  sports move such as the Fosbury Flop,would be subject to copyright protection, the range of techniques available to athletes and chess players alike might  be greatly impaired. It is not the moves themselves, therefore, but the original  broadcast, that Agon can protect.

Agon’s rights might be more forceful under the US ‘hot news’ doctrine of misappropriation, created by the Supreme Court in International News Service v Associated Press, 248 U.S. 215 (1918), even if this doctrine has been unevenly applied under U.S. law. In particular, this doctrine has had very limited success in protecting the transmission of sporting results. For example, the National Basketball Association failed to stop Motorola from disseminating live statistics on matches. This doctrine is not established in the UK, but applying similar reasoning would suggest that Agon would not be able to prevent information about the moves from being shared. It seems that Agon may have the rival websites in check, but they will be able to get out of this position provided that they have not transmitted Agon’s original broadcast.