PGN Downloads (2016)

What can I say about chess copyrights that hasn't already been said? Just about everyone knows that the moves of a chess game can't be copyrighted, but any notes to that game are automatically protected. Five years ago, in PGN Downloads (February 2011), I noted,

Many players don't realize it, but the list of games in a book is copyrighted material.

That pretty much precludes anyone who respects copyright from creating a file containing the PGN game scores from such-and-such a chess book. Or does it? In 'PGN Downloads (2011)' I offered a few files to test the waters, but I've never been entirely comfortable with the scenario.

Recently I was re-reading the Associated Press Stylebook (I have the 39th edition, June 2004), where the last section is 'Copyright Guidelines'. The AP says,

While copyright generally prohibits the use of another's protected expression, the doctrine of "fair use" permits, in certain circumstances, the use of copyright material without its author's permission.

To determine whether a particular use is fair, courts are required to evaluate and balance such factors as:
(1) the purpose of the use;
(2) the nature of the copyright work that is used;
(3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and
(4) the effect of the use upon the potential value of the copyright work.

I had never considered 'fair use' in the context of a file of PGN games, but there is an excellent match. Going through each of the AP's four bullets, '(1) the purpose' of a PGN file is

• to read a chess book with the help of a PGN reader,
• to apply a chess engine to the notes in a book
• to produce statistics on the games in a book

As for '(2) the nature of the copyright work', I believe that for books this means fiction vs. nonfiction, where chess books are nearly always nonfiction. The stylebook says later,

Fair use is more likely to be found if the copyrighted work is informational rather than fictional.

As for '(3) the amount and substantiality of the portion used', I am currently preparing a PGN file for Walter Browne's 'Stress of Chess'. Its list of 101 games takes a little more than two pages in a book with 463 pages. That is probably typical for a chess book and amounts to less than 0.5% of the material in the book.

The last bullet, '(4) the effect of the use upon the potential value', is the easiest. A PGN file containing only the original moves of the games in a book -- no variations or notes! -- considerably enhances the value of the book. In my opinion, it should be produced together with a book and distributed digitally by the publisher when the book is first published.

I took away one more general point from the AP's discussion of copyright:-

Proper attribution cannot transform an infringing use into a fair one.

With this discussion in mind, I can return to the subject of Tag Maintenance, specifically 'Tag: Downloads'.