Bulgarian Chess Federation vs. Chessbase: 0-1

In May 2010 the Bulgarian Chess Federation, after organizing the Anand-Topalov World Championship match, took Chessbase to court for "violating copyright rules". Chessbase had transmitted the moves of the match live on their Playchess server, without permission of the Bulgarians. Recently in a court in Berlin all demands of the Bulgarian Chess Federation were rejected.

Last year, in May 2010, the Bulgarian Chess Federation organized the Anand-Topalov World Championship match in Sofia, Bulgaria. They managed to collect a prize fund of 3 million Euros: 2 million for the players, 400,000 for FIDE taxes and 600,000 for organizational costs.

In an attempt to earn back at least part of that money, the organizers tried to sell the rights to cover the event to other media. For instance, the Bulgarian national TV channel were said to have paid the organizers to have the right to film the players with cameras inside the playing hall.



The Bulgarian Chess Federation also attempted to sell the media the right to transmit the games live on the internet. On behalf of the organizers, Silvio Danailov told ChessVibes a few weeks before the match that we needed to pay 15,000 Euros if we wanted to transmit the games live. Although we weren't sure about the legal situation, we were not inclined to fight this in court. Chessbase was.

Bulgarian Chess Federation vs. Chessbase

While they backed off during the Topalov-Kamsky Candidates Match in February 2009, this time Chessbase decided to play hardball. The Hamburg based company, a market leader in chess software, transmitted all twelve games of the Anand-Topalov match on their Playchess server.

On June 2, 2010 we reported that the Bulgarian Chess Federation had taken Chessbase to court. We quoted Silvio Danailov, who in the mean time has become President of the European Chess Union and also President of the Bulgarian Chess Federation. Back then, as the main organizer of the World Championship match, he said:

"Before the start of the World Chess Championship we explicitly stated that no company can use the moves without the official site's staff permission. And this was violated by Chessbase, they put themselves above the law in Europe, above the general FIDE ethical rules. (...) I believe in European law and in our Attorney who is presenting the case - Mr. Rainer Polzin. What's more, I am candidate for President of the ECU and as such I have to stand behind the rights of professional chess. Such actions, as the one by the German company Chessbase, affect the sponsors of events negatively, which damages sponsorship, from there future organization and level of events. In the long run the biggest damage is made on the chess fans, who are the most important part of the game - they certainly deserve to enjoy high level events and have chess sponsorship on all levels. Thus, by defending our rights through European law, we will be defending all fans and the future of chess."

Their attorney, GM Rainer Polzin, has a law firm in Berlin. In June he explained to us:

"The case has been filed at a court in Berlin [Landgericht - CV]. The action is partly based on the German Copyright Law, which is based in the protection of databases mainly to European directives. The EU directive (EU Directive) 96/9/EC of 11 March 1996 will play an important role.

Further claims from the Competition Law will be invoked. It is essentially a question of whether the live acquisition of content from a website, which is funded by sponsors, put onto another website, with the intention of generating profits, is admissible.

There have been some cases in Germany on broadcasting rights of football matches. But there it's clear what is copyrighted: photos, moving pictures and radio reports. The problem for the clubs is when reporters without prior permission for sale, after buying a ticket, make photos or videos. These are fascinating cases. But it's not comparable with our case, as ChessBase had no reporters in Sofia."

Demands rejected

It's quite common that the preparation of such cases takes many months, but on Tuesday, March 29th at 10.30 in the morning it was dealt with in the Landgericht Berlin. Half an hour later everyone had already left the court room. The judge had rejected all demands by the Bulgarian Chess Federation.

As soon as we heard about this, we requested a copy of the judgement. A press spokesman of the Berlin court sent us a preliminary copy, on which the following description of the court case is based.

Update: This document is now also available online for download.

The demands

As it turns out, the Bulgarian Chess Federation demanded both information from Chessbase, and damage compensation for their relay of the games on Playchess.

The two parties had a difference of opinion about whether it was possible to send information, via a mobile phone or the internet, from the playing hall to the outside world. However, it was clear that his was possible from the press room.

The Bulgarian Chess Federation transmitted the games on the official match website, without delay. It claimed that it spent about 8,000 Euro for this, and managed to find 15 commercial partners for advertising. Other sites and servers also transmitted the games live. Chessbase/Playchess transmitted the moves of the games live or at least very quickly after they were played, and there the games could be followed without advertising. This was done without permission from the Bulgarian Chess Federation.

The BCF claims to own all commercial rights over the match. Chessbase didn't record the moves in Sofia themselves; the BCF assumes that they used their data to re-transmit the moves. The main claim from the BCF came down to the following: by using data from the match website, and re-transmitting this on Playchess, Chessbase was violating the rights of the BCF as database producers.

Database

As written above, in June last year Mr Polzin referred to the EU directive (EU Directive) 96/9/EC of 11 March 1996 which deals with the legal protection of databases. In this court case the German version of a similar directive was referred to. Basically, the BCF argued that a chess game can be seen as a database, and one move from a game can be seen as an entry in this database. Needless to say, the German directive declares the copying or redistributing of a database, without the permission of the owner, illegal.

Secondly, the BCF referred to the Gesetz gegen den unlauteren Wettbewerb, or in English the Law against Unfair Competition. They argued that transmitting the games for free without permission, and selling them as part of a database, was a case of unfair competition. Chessbase was doing this for commercial purposes while the BCF would miss out on advertising income because of this.

Furthermore, the BCF demanded to see the number of visitors at Playchess for all playing days of the match, and what income Chessbase had achieved from this. Besides, a decent amount of compensation for the lost damage based on this income, plus a 5% interest rate. Besides, it was demanded that Chessbase would authorize the BCF to mention all this harm in an advertisement in New in Chess Magazine, to be paid by Chessbase.

Chessbase's position

Naturally, Chessbase asked the judge to reject the demands. They claimed to never have accessed the tournament website to report about the match. They said to have obtained their information from several, free accessible internet sources as well as journalists present in Sofia. They manually entered the moves for transmission based on this information, which automatically led to some delay in the transmission of the moves. Therefore, the transmission wasn't live. Besides, said Chessbase, there is no such thing as a game being a database that contains chess moves, referring to the definition of a database in the German law.

Chessbase noted that they were under the impression that the Bulgarian Chess Federation wanted to monopolize free accessible and historically relevant sports information. They pointed out that monopolization of information is against both the EU Database Directive and German Law.

Judgement: claims rejected

The judge rejected all claims from the Bulgarian Chess Federation. The BCF cannot stop Chessbase from using their database or transmitting games. The most important aspect was that the judge didn't agree that a chess game can be seen as a database, and therefore the BCF couldn't refer to their rights as database producers.

Interestingly, to support this, the judge pointed out that the according to the definition in the law, the obtaining, verification or presentation of a database requires a qualitatively or quantitatively substantial investment. The BCF had not supported enough evidence that their investment of 8,000 Euro to show the games to the world is a realistic amount.

Besides, according to the judge the rights of sporting events are currently not regulated by special law. In this case, however, it was clear that the moves of the chess game were not part of the rights, according to the judge. They were freely available on other sites, and could have been entered manually after recognizing them on site.

The BCF could also not rely on the Law against Unfair Competition, since the transmission of chess games cannot be seen as a product with a competitive character. This is, because this transmission isn't done in a specific way, with certain unique elements, for which chess fans would want to follow the games. (They only want to follow the games because they want to know the moves.) The games could also be seen on other sites, and the BCF hadn't done anything to make their transmission different from those.

Not final

As said before, the description of this court case was based on a preliminary copy of the judgement. Chessbase preferred not to comment on the case (and in fact also decided not to report on it on their own website.) Earlier this week we spoke to Rainzer Polzin, who told us that he hadn't received anything official yet. He did say that he found the judgement "very interesting" and that he's contemplating a possible appeal. Silvio Danailov told us the same:

We are waiting for the arguments from the judge regarding the court decision in Berlin. He is expecting [to send] the report within the next thirty days. When we received those arguments, we will discuss to appeal in the higher EU Court or not.

In certain cases, against a Landgericht judgement like this one it's possible to appeal in a Kammergericht. After receiving the official judgement on paper, the Bulgarian Chess Federation will have one month to file the appeal. And so clearly, the current judgement isn't final yet. However, for the moment Chessbase leads this fight, and the ball is in the Bulgarians' court.

ECU plans

Silvio Danailov always tries to find ways to make chess more professional and more interesting for a bigger audience and potential sponsors. The Sofia rule is a good example of his ideas, and has been widely adopted by tournaments. However, Danailov's idea about the copyright on chess moves is quite controversial.

It's interesting to see that exactly this subject was on the agenda at the Extraordinary General Assembly which was held in Aix les Bains (France) on 29 March, 2011.

4.4 The decision on the copyright on the use of chess games from the ECU competitions and the organization of the WebSite in the ECU competitions

1. In all the official competitions ECU shall exploit all rights which it owns or shares with third parties, such as property rights of any type, intellectual property rights and rights for audio-visual and sound-broadcasting transmissions by picture or data carrier of any kind (including all means of transmitting computer images, with or without sound, such as Internet, on-line services or the like, whether existing already or not). This includes the production, duplication, dissemination and broadcasting of pictures, sound or data carriers of any kind by ECU alone or with third parties. 2 For this purpose, ECU alone, or with third parties, shall be entitled to form or operate companies, for which they may make use of any legal entities authorized under Swiss law. 3. A detailed way of the exploitation of rights, the organization of transmitting computer images, with or without sound, such as Internet, on-line services or the like will be specified by the European Chess Union Board. 4. The way the income earned from marketing is shared, as well as the income earned from transmitting computer images, with or without sound, such as Internet, on-line services or the like, will be specified by the European Chess Union Board. 5. The details from 3. and 4. of these Rules will become an integral part of every contract signed with the technical organizers of the official ECU competitions, starting from January 1, 2012.

Danailov told us that at the ECU General Assembly, the delegates agreed on achieving this goal: "Having agreed on the details, the delegates will vote for passing the new rules." It remains to be seen whether "the copyright on the use of chess games" will include the transmission of the moves by third parties.

Update: Medienrecht-blog posted about the case on April 13th, 2011.

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We decided to report on this case extensively, because we consider the issue of copyright on chess moves very important, and we have reported on the subject several times before here at ChessVibes. Here are some of our previous articles:

• Bulgarian organizers take Chessbase to court (June 2, 2010)
• Copyright on chess moves – shadows on the wall? (March 3, 2009)
• Copyright on chess games? (April 13, 2007 - in both Dutch and English)