Saturday, October 26, 2013

Typeface / Law Interface

Difference Between a Font and a Typeface

This is a frequent source of confusion among people because they are used interchangeably even by industry professionals. But, technically speaking, a font refers to the physical embodiment of the print such as the metal or wooden blocks - or nowadays, a program or computer file used to inform your printer or display renderer how to show a letter or a character. A typeface, on the other hand, is a set of numbers, letters, and other symbols with certain repeating design elements. A font is what you use: a typeface is what you see.

For instance, while most people refer to the dreaded “Comic Sans” as a font, it is actually a typeface. The file Comic_Sans.ttf, which your computer uses to tell the display or printer what the typeface looks like, is the font.

Protection Afforded to Type Faces

In the United Kingdom, Germany, and France, owners of typefaces have, for 16 years:
a. the right to prohibit the making, without consent, of any reproduction, whether identical or slightly modified, intended to provide means for composing texts by any graphical technique, irrespective of the technical means or material used; and

b. the right to prohibit the commercial distribution or importation of such reproductions without consent.

But this is not the case in other countries. In Australia, the Designs Act 2003 included a revision on the definition of a 'design,' describing it as “the overall appearance of a product resulting from one or more visual features” and 'product,' which is defined as “…a thing manufactured or handmade”.

One of the notable cases related to these changes happened 2008, when Microsoft decided to file an application for a design font. The application to protect the design font was rejected by the designs examiner. The rationale in that decision is that type font isn't considered a 'product,' mainly because a product must be "finished" and "tangible," which a font isn't.

Microsoft argued that a product under the 2003 Act is defined as ‘a thing manufactured or handmade’ without any qualification as to whether the product must be a ‘finished’ product or ‘tangible’ in nature; nor, said Microsoft, is there any distinction between the product being ‘at rest’ or ‘in use’. Consequently it is only necessary to demonstrate that the design relates to a ‘thing manufactured or handmade’. The fact that type font can be produced by computer software should not detract from eligibility for registration as a design.

A number of interesting issues arose from the concept of designs protection for a type font. By way of illustration:
• What commonality of visual appearance is present in (for example) the letters ‘I’ and ‘O’, and with either of those and a period ‘.’?

• In the case of two fonts – one being a sans serif version of the other – what is the difference between the characters ‘O’, ‘o’ and ‘0’ respectively as between the two fonts? [For example, if design protection existed for the serif font, how would you determine whether the appearance of a string like ‘OOOOO’ would constitute an infringement?]

• If (at least notionally) you treat the different characters in the representations as being different products, such that you might argue that there is a common design in relation to more than one product [s.22(1)(b)] – how do you assess the common design elements of (for example) a period ‘.’ and a slash ‘/’.

The hearing officer said, "The present design is for a font. It is not a hammer for a typewriter; it is not a type element for use in type-setting with metal blocks; it is not a rubber stamp. It is the shape of characters that might be applied to any of these things – as well as any other medium – be that paper, computer screen, light projection etc. Indeed, in the computer environment a type font exists as a binary file (in the Windows® environment, usually as a .TTF or .FON file), with that file being used to control how information is presented on computer output – whatever that output might be (monitor, printer, etc). I do not think that the present design shows a product bearing visual features. Rather, the representations show a collection of visual features intended to be applied to unspecified products in unspecified arrangements…In my view, the present design does not disclose a product bearing visual features. It only discloses visual features."

By why are we talking about the Designs Act at all? Isn’t typeface protected by copyright? Unfortunately the position differs from country to country.

In the US, the leading decision is Eltra Corp v Ringer, 579 F.2d 294 (4th Cir. 1978). Eltra was a manufacturer of typesetting equipment. It applied to register typefont with the US Copyright Office as a “work of art”. The Registrar of the Copyright Office refused the application. The Registrar based the refusal on a regulation which reads, “If the sole intrinsic function of an article is its utility, the fact that the article is unique and attractively shaped will not qualify it as a work of art. However, if the shape of a utilitarian article incorporates features such as artistic sculpture, carving or pictorial representation, which can be identified separately and are capable of existing independently as a work of art, such features will be eligible for registration.” The typefont was not a utilitarian article. It is applied to utilitarian articles which did not form part of the application.

On appeal, the court said that the typeface design is indeed a work of art, but the Copyright Office had a “long-standing practice” or refusing such registrations and that Congress have never over-ruled this by statute. This inaction by Congress indicated an acquiescence to the administrative interpretation given by the Copyright Office. It dismissed the appeal.

The matter was further appealed to the Court of Appeals, which found that typeface was not a “work of art” and so did not attract copyright protection.

In the United Kingdom, there is an express provision in the Copyright, Designs and Patents Act 1988 which specifically recognises that typefaces may be copyrightable as “artistic works”.

The Canadian Industrial Act grants protection to typeface designers.

In Australia, Roland Corporation v Lorenzo & Sons (1991) 22 IPR 245 involved a dispute between a Japanese company which makes musical equipment such as electronic synthesisers, and an Australian company which sells musical equipment by mail order under the name "Pro Audio".

The Japanese company had two logos, both of which the Australian company argued as not having any copyright “because they were, in essence, merely depictions of single letters”.

So the dispute came down to copyright in the typeface.

The court said:

It seems clear that a mere random collection of letters of the alphabet could not be copyright and presumably a mere random scribble could not be either, but the devices with which I am concerned are by no means random and were plainly drawn with care, to obtain an effect…. It is common ground that the two devices, R and B, were applied to the first applicant's equipment sufficiently often for the section to apply. If it does apply, then it follows from s.77(2), which I will not set out, that no suit for infringement lies... [as] copyright subsists in the devices, a corresponding design has been applied industrially by the applicant (the owner of the copyright), articles to which that design has been applied have been sold in Australia and at that time they were not articles in respect of which the corresponding design had been registered under the Designs Act 1906. No reason was suggested why the devices could not have been registered as designs and, in particular, they were not excluded from registrability by reg.11 of the Designs Regulations.

Which brings us back to the Design Act. Which, as we know from the Microsoft case, does not protect typefont.

QWERTY keyboard

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