Tuesday, October 31, 2006

"I have no problem obeying the law, I do have a problem obeying laws that don't exist"

FIDE and ChessBase have been shamed and defeated by this article. It applies to Go as it applies to Chess. It's worth reading in its entirety. AGA and GoBase, take heed!*

Chess Games Belong To The World - Published a decade ago in "The Kibitzer".

By Tim Harding

Some chess players may think they will benefit if the recent FIDE move towards the copyrighting of chess games goes ahead, but I can assure you that 99 per cent of the chess community will suffer and that means you, dear reader. So I call on you all to put pressure on FIDE, directly or through whatever national chess organisation to which you may belong, to call a halt to this lunacy now. What should be protected is the "value added" of good notes by the players and good writers and chess teachers, not the "bare" scores (whether in print or on a web page or a computer database) that just give the moves played in a game.

Just to give the background for those who don't know the issue, FIDE announced a few weeks ago the rules for its forthcoming knockout world championship contest and these included under Paragraph 10 - Playing Conditions (10.2 c): "The players' score sheets are the property of the players and FIDE, and FIDE has exclusive rights to publication." Read those words carefully; I shall return to them later.

I am not a lawyer so will not go into many legal technicalities here, but for those who want to explore that aspect I recommend you read Mark Crowther's lengthy article on the topic in The Week In Chess, No. 146, which includes a legal opinion that sounds about right to me. You can easily find TWIC on the Net and read it for yourself.

My arguments in this column are essentially layman's views but are based on my 30+ years as an active chess player at a fairly high level, 25 years as a published chess author and journalist, and now with a publisher's hat to wear too!

Actually I doubt if FIDE have a legal leg to stand on, given there is a century of precedent of free publication of chess games worldwide while previous legal attempts to copyright games (in a few countries) have failed, so I hope that this is just a try-on and that they will back down. However, let us look at the scenario if FIDE were to win a test case in a major jurisdiction such as the USA, United Kingdom or Germany.

As a practical master-level correspondence player, I might find it beneficial to my results in the short-run if my games were harder to get hold of, so that my opponents could not so easily prepare for me, and it may be that FIDE hope the majority of master level players will back their move for that reason. Maybe by refusing permission for my losses to be published, I could even spare myself some blushes. However, those gains would be more than outweighed by my not easily being able to obtain the games of opponents and of other players who are approximately at my level, as well as by having to pay to see what the Kasparovs and Topalovs of this world are getting up to.

Certainly the top grandmasters are the only players, if any, who will make any money out of this. The games of major events will still be available, but somebody will get paid for them. We'll come to that in a minute. The games of ordinary Joe and Jill Soaps played in ordinary chess competitions could become unpublishable, except where players themselves send them in for publication.

In a worst case scenario, we could even see chess journalists and publishers sued for articles and books already published but it is more likely that FIDE would attempt to enforce their view on a "from now on" basis. If FIDE succeeded in controlling the game scores in events under its own jurisdiction, the world correspondence chess governing body ICCF might be tempted to try and follow suit, and the same could go for other bodies that organise chess events, such as national associations and even clubs and commercial tournament organisers.

Curiously with correspondence games, there is a split. Traditional postal games, unlike over-the-board games, are not played in public so usually only the players and perhaps the tournament director ever sees the moves. On the other hand, email games played under the auspices of ICCF and IECG cannot at present be hidden from future opponents, as these organisations email monthly reports (including the PGN game scores of all completed games) to all those who compete in their events. Of course they could change that policy.

Undoubtedly many chess organisers have doubts about the value of chess databases, and particularly free games postings on the Net, because it hits at a possible source of income for them and makes it harder, for example, to produce a saleable tournament book when
all games are already available freely. However, if they were to back FIDE's move, they would in my opinion undermine the popularity of the game. For example, newspaper columnists would have to tell their editors they can only publish a game by a player who is not fifty years dead if he or she has actually sent them the game; otherwise a fee will be payable, just as radio stations have to pay a fee for every record they spin. Speaking as somebody who wrote a national chess newspaper's weekly chess column for almost two decades, the editor and his accountant would say goodbye and run a column on Scrabble or knitting instead.

Now to put on my chess publisher hat, I would fear that "Chess Mail" (and many other magazines) might have to cease publication if copyright was enforceable on correspondence games. At the very least, we could only publish games sent to us by either one of the
players or the tournament director and would require a written confirmation from them that we could publish the game. We might even have to cut references to other players' games from the notes! The chess publishing world would shrink dramatically. You would
probably be left, in each main language, with only two or three giants who would swallow the cut in their profits and pay up in return for the pleasure of seeing most of their competition vanish - and maybe a few minnows whose circulation and income would be too small to be worth suing.

With my chess author hat on, I can tell you that publishers would eagerly start commissioning books on areas of the game that wouldn't easily fall under FIDE's hammer (e.g. endgame books, books on 19th century chess, chess variants and players' autobiographies) while the authors of openings manuals would be told that it is no longer OK to include modern complete games unless they are accompanied by a notarised letter of permission from one of the players. In other words, forget openings books.

I always have written my own books and articles under the (up to now) prevailing view that bare unannotated game scores are public events, like the scorecard of a cricket or baseball game which could be compiled by anyone who watched it. Quoting other people's annotations at length would normally require permission, but short excerpts would fall under the accepted principle in the academic world that free quotations for the purpose of comment and criticism are normal practice essential for free debate. When I wrote notes to one of my games for a particular magazine, as a favour to its editor, and then saw it copied (without even a "may I?" request) in "Fernschach", I moaned but I did not sue. Maybe next time!

At this point, I would just like to refer back to the FIDE rule above, which really mixes up two different copyright issues. "The players' score sheets are the property of the players " can only be taken to the individuals' handwritten record of the game as it was in progress, and as such there is not really a problem. Of course only the most famous players can expect to be able to make any money out of selling their autographs (Kamsky tried it a few years ago) but so long as the gamescores (i.e. the record of the moves) remain available, I would not have any problem with this.

The second part of the rule is where the problems arise: "and FIDE, and FIDE has exclusive rights to publication." The final clause is also clear enough, albeit objectionable: FIDE is saying that it, as organiser of the event, and NOT the players have the right of publishing the games. In other words, if Karpov plays Kramnik in the event and one, other or both of the players want to send the games for publication to, say, Informator or New In Chess they cannot do this without FIDE's permission (or perhaps without those publications buying some kind of licence from FIDE). Karpov can say but these are my notes, but FIDE can retort that the right to publish the game is its alone. If the readers can figure out from the notes alone what the moves were, they must have a very high IQ.

The middle part of the sentence is most curious also. In the FIDE rule quoted above, that first "and FIDE" means that FIDE intends to assert equal right with the players to ownership of the intellectual copyright of the game played between them. Leaving aside for the moment the question of whether a chess game can be intellectual copyright, FIDE claims here that because a game is played under its auspices, it owns the game (at least in part). Effectively FIDE is stating that, in competing in one of its events,he players are working for FIDE on an indentured basis rather than as freelances. However, the contestants are playing for prize money, not fixed salaries, so I think this one is a non-starter, Mr Ilyuzhiminov.

Finally, are chess games copyrightable at all? As a chess author and publisher, I am certainly interested in defending copyright where it genuinely exists, especially as so many people on the Net are very casual about it. However, as Mark Crowther put it so well in TWIC 149: "I have no problem obeying the law, I do have a problem obeying laws that don't exist". Intellectual copyright may exist where an author, or artist, working alone produces a text or other identifiable piece of work (it could be sculpture or music but one-off "performance art" would not qualify) which is reproduceable. It does not have to be artistic work; a textbook or any other original writing also qualifies. In that case the law says that the creator, or his/her heirs, own the rights to reproducing it, normally until 50 years after their death. If there are joint authors, they choose to create the work together and share in the rights arising.

A chess game does not come about in this way, but rather by conflict between the two players, as a football game arises from the interplay of two sides. It's not possible for me to say "I have copyright in the white moves and you have copyright in Black's moves"; neither is meaningful without the other and even if we decide to share the rights to the game, it is debatable whether the record of a public event is copyrightable.

So finally we have to ask the old question, "cui bono?", who would benefit? Clearly apart from FIDE itself, one or two companies like ChessBase, who would be able to increase the prices of their databases, and just a few top grandmasters, who already cream off most of the money that's available to be made in the chess world. Do you really want to support a move that will make you, and chess literature poorer while these happy few get richer?

*AGA and GoBase appear to be the only Go-related commercial entities that are highly active in opposing the freedom of Go game records - and not shunning immoral or even illegal methods to achieve their goal. Do the sensible thing: Keep Go games free and don't renew your AGA membership!