Introduction and structure
Fonts- Can be divided into Typefaces;
Fonts, and Font Formats.
1. TYPE FACES and COPYRIGHT
Although technically an artistic work, type faces have been denied copyright
protection for number of reasons.
Eltra v. Ringer - 1972- appellant sought to register his fonts
as works of art under the
copyright act-:
The office refused registration
stating that there "no elements, either alone or in
combination which can separately be identified as a
work of art"
.
He appealed the decision.
A typeface had been defined by the Copyright act as
"a set of letters, numbers, or other symbolic characters, whose forms are
related by repeating design elements consistently applied in a
notational system and are intended to be embodied" .
The court went into the utility question and argued
that in the case of type faces the design and the
utility were so integrated that once could not argue
for it being an artistic work outside of its utility.
under s 5(g) to conform, (s 202.10(c), 37 C.F.R.):
"(c) 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."
2. TYPEFACES AND PATENT
Adobe v. southern software-1998
.
Adobe sued SS for copyright infringement;
-they
claimed that the defendant had used a font editor to
modify Adobe's fonts .
Adobe contended that King loaded Adobe font software
programs into his computer then created his own 1555
font software program by using FontMonger.
FontMonger extracted reference points, or on-curve
points, and stored this information.
FontMonger stores
both existing on-curve points and off-curve points.
FontMonger does not copy any of the glyph
instructions; it inserts new glyph instructions.
However, the glyph instructions are implicit in the
sequence and nature of the glyph coordinates.
Thus,
unless the on-curve points and off-curve points are
moved by the user, the glyph instructions written by FontMonger will be
functionally identical to those of the original font software program.
Adobe contended that after extracting all of the glyph coordinates from the
Adobe programs, King merely scaled the coordinates 101% on the vertical axis
in order to change the font slightly. Adobe contended that the only difference
between the 1555 product and the 2002 product is that the value of each x
coordinate has been increased by a uniform amount and the advance widths have
been changed.
Argument 1
.
Defendant contended that copyright infringement
existed only when there was a valid copyright that
subsisted in a work, and since type faces
are not copyrightable subject matter there cannot be
any infringement
.
Adobe argued that a computer program produces unprotectable typefaces but does not make the computer
program itself unprotectable
1988 Copyright Office Policy Decision, the Copyright
Office determined that digitized typefaces were not
copyrightable because they were not computer programs
and required little selection or arrangement beyond
that dictated by the uncopyrightable typeface design.
-''Policy Decision on the Copyrightability of Digitized
Typefaces, '' 53 Fed. Reg. 38 1 lo-381 13 (September
29, 1988).
However, in 1992 the Copyright Office issued a final
regulation regarding the registrability of ''computer
programs that generate typefaces'' which appears to
back off the 1988 policy decision:
The 1992 Regulation
states:
bitmapped fonts are merely the computerised
representation of a typeface and not copyrightable.
Scalable fonts are different;
After a careful review of the testimony and the
written comments, the Copyright Office is persuaded
that creating scalable typefonts using already
digitized typeface represents a significant change in the industry since
our previous Policy Decision.
We are also persuaded that computer programs designed for generating typeface
in conjunction with low resolution and other printing devices may involve
original computer instructions entitled to protection under the Copyright Act.
For example, the creation of
scalable font output programs to produce harmonious
fonts consisting of hundreds of characters typically
involves many decisions in drafting the instructions
that drive the printer.
The expression of these
decisions is neither limited by the unprotectable
shape of the letters nor functionally mandated. This
expression, assuming it meets the usual standard of
authorship, is thus registrable as a computer program. .
Coincidence of course that the 1992 regulations came into place after intense
lobbying by Adobe systems with congress Argument
Argument
2:
Lack of originality or creativity
.
Defendants argue that after one has filtered out the unprotectable elements of plaintiffs software in order
to compare what remains, one finds that minimal, if
any, protectable expression remains.
Defendants argued that ''merely manipulating an unprotectable font image to create another, slightly
different (but still unprotectable) font image cannot
possibly give rise to protectable expression....''
Defendants argued that no matter what points are
selected by the Adobe editor performing the process,
they correspond directly to, and hence are determined
by, the unprotectable font shape.
Therefore, because
the output is not protected and there cannot be any
creativity in what the editor does to obtain the
output, nothing is protectable
.
Adobe argued that originality for the purpose of copyright does not pertain to
creative originality but to the point of origin and the threshold
required for proving a work to be original is very low .
Adobe argued that "while the shape of the glyph necessarily dictates some of
the points to be chosen to create the glyph, it does not determine all the
points to be chosen. Thus, each rendering of a specific glyph requires choices
by the editor as to what points to select and where to place those points.
Accordingly, Adobe asserts that the selection of points and the placement of
those points are expression which is copyrightable in an original font output
program. The actual code is dictated by the selected points". .
Court agreed and stated that
"The evidence presented shows that there is some creativity in designing the
font software programs. While the glyph dictates to a certain extent what
points the editor must choose, it does not dictate every point that must be
chosen. Adobe has shown that font editors make creative choices as to what
points to select based on the image in front of them on the computer screen.
The code is determined directly from the selection of the points. Thus, any
copying of the points is copying of literal expression, that is, in essence,
copying of the computer code itself"
Argument 3:
Patent claims
Adobe is the owner of six design patents. Adobe's design patents are presumed
valid; however, that presumption may be overcome by clear and convincing
evidence to the contrary. Adobe asserts that defendants have infringed the
design patents.
1. Defendants assert that the patents are invalid and
unenforceable as a matter of law, Defendants claim
that the patents are invalid because the font designs
are non-statutory subject matter in violation of 35 U.S.C. section 171 (requiring ''original and
ornamental design for an article of manufacture'') in
that none of the design patents discloses an article
of manufacture.
2. Defendants further assert that the patents are
invalid because the designs each lack the requisite
novelty and non-obviousness for patentability.
Defendants also claim that, in any event, the design
patents are unenforceable because Adobe willfully
failed to disclose prior art when applying for the
patents.
Adobe contends, however, that the requisite article of
manufacture in this case is the program which allows
the typeface to be rendered.
The court in ex parte
Tavama, 24 U.S.P.Q.2d 1614, 1616 (Bd. Pat. App. & Int.
1992), after rejecting a claim for the ornamental
design of an icon, observed
Moreover, appellant asserted that affirmance of the rejection will bring into
question the validity of numerous design patents directed to type fonts.
We disagree.
The phrase ''type font'' may be properly
interpreted as referring to letter blocks or pieces
used in a conventional printing press. The blocks or
pieces constitute an article or articles of
manufacture. Unlike the designs here, which are stated
to be surface ornamentation, type font designs are
reasonably interpreted to be the shape or
configuration of the letter blocks. The fact that the
meaning of ''type font'' may have expanded in usage to
include letters or numbers appearing on paper or on a
computer screen does not invalidate the long-standing
interpretation of type font designs as
configuration-type designs or pieces or blocks of
type.
24 U.S.P.Q. 2d at 1618.
Based upon the reasoning of Tayama, type fonts are patentable subject matter and
the program which creates the type fonts is the
article of manufacture.
Accordingly, the court finds
that the typeface designs are statutory subject matter
entitled to patent protection.
. On the issue of whether or not there was disclosure
and prior art, the court found that there issues of
facts which were triable and had to be reconsidered.
. The decision of the court is now on appeal.
Impact of Adobe v. southern software
.
While traditionally type faces were held to be uncopyrightable , the impact of the adobe case by
granting patent protection to the type face is in
effect a protection of the type face and more
Jonathan Mezrich:
" In light of Adobe, the extension of copyright law to fonts will have a
profound impact on the software industry.
Adobe has a history of aggressively setting software standards: initially in
the realm of desktop publishing and recently in the area of web publishing and
web page design.
Moreover, Adobe has entered licensing agreements with IBM, Apple, and
Microsoft that likely will lead to implementation of Adobe technology and
standards in these companies' future products. Because these new products will
utilize Adobe-generated fonts and will require related programs and
peripherals to mimic the same standards, Adobe will reap enormous benefits
either for as long as the standard persists or until their copyrights expire.
In light of the Adobe holding, Adobe apparently will be able to charge a
licensing fee for its web design and publishing software as well as for the
underlying fonts.
Companies wishing to create software for platforms utilizing the Adobe
standard will have to pay a licensing fee to Adobe or forego satisfying
customers utilizing these major platforms such as IBM, Apple, and Microsoft.
3. FONT FORMAT AND PATENT/ COPYRIGHT
-
What is the impact of the Adobe case for font
formats?
- Can font formats either be copyrighted, patented or
protected under any form of IP?
3.1 Copyright and the idea/ expression dichotomy
.
Baker v. selden - and the double entry ledger
system- utility argument
3.2 Software Patents
. Initial position of the patent office was to
outright reject applications for software patents
. Early instance of whether an invention consisting of
mathematical algorithm is patentable subject matter
arose in Gottschalk v. Benson (1972) -
"We conclude
that one may not patent an idea. The mathematical
formula involved here has no substantial practical
application except in connection with a digital
computer which means that if the judgement below is
affirmed, the patent would wholly pre-empt the
mathematical formula and in effect would be a patent o
the algorithm itself"
. "it is conceded that one may not patent an idea. But
that would be the result if the formula were to be
allowed to be patented in this case".
.
This did not stop people from attempting to patent
software and the 70's saw a number of applications for
special purpose computers.
In Flook (1978), the court
held that a patent on a method of calculating an alarm
limit controlling the temperature was unpatentable
because the only novel part of the invention was a
mathematical formula.
.
In Diamond v. Diehr (1981), the court however held
that the patent was framed not as a method of
calculating a number but of curing rubber. The fact
that the method used a formula to compute temperature
and that the use of that formula in a computer was
the only novel part of the invention did not render
the process as a while unpatentable.
.
The US court of appeals created a two part test known as the
Freeman-Walter-Abele test:
* First determine whether a patent claim recites an algorithm directly or
indirectly * If it does, then is the claimed invention as a whole no more than
the algorithm itself? . After the establishment of this test, patent claims
started describing themselves as part of a process rather than as a algorithm
itself. .
In Re Allapat- The invention will read on a general
purpose computer programmed to carry out the claimed
invention, but the claim is patentable nonetheless
because "such programming creates a new machine,
because a general purpose computer in effect becomes a
special purpose computer once it is programmed to
perform specific functions pursuant to instruction
form programmed software"
.
Is this not true of any program?
.
There was still confusion however after the Allapat
decision , for instance in In re Lowry, abstract
claims to a type of software adapt structure where
objects arranged in a complex manner was held to be
patentable , while in In Re Warmerdam, a process claim
was rejected since the mathematical algorithm is
implicit in the claim that is made.
.
The US PTO then issued the 1996 guidelines.
Although most software related inventions are now statutory under these
guidelines, it is important to remember that "software" as a class is not
patentable.
What is patentable are "processes" and "machines". Thus the guidelines are
framed so as to assist in determining when computer related inventions are
patentable processes or machines.
According to the new guidelines, computer programs that have traditionally
been held to be statutory will continue to be statutory without further
analysis.
These "safe harbor" inventions include two types of inventions: Those having
"significant post solution activity", meaning that the software program is
used to control something external to the software routine (such as curing
rubber), and those having "pre-computer process activity", meaning software
programs that manipulate numbers representing concrete, real world values
(such as electrocardiograph signals and seismic measurements.
In addition to these safe harbor inventions, a computer related invention will
be statutory if it is claimed in connection with a specific machine or
product. This can be accomplished by defining specific code segments or
routines in the patent application, or by claiming the invention in connection
with a specific type of computer or memory structure.
What is not important is the type of computer program involved. Thus, while it
is clear that a program designed to improve communication speed over a modem
is statutory subject matter, it is equally clear that a graphics program, a
spreadsheet, and a word processing program are statutory when properly
claimed.
The disjuncture between the reality and the law:
With over 40,000 software patents in force and several thousands being issued
every year, the law seems to be left far behind.
The "cognitive dissonance" that results between what
the law is and the actual practice suggests
that the law can be expected to change or that a large
number of issued patents will have to be held to be
invalid.
.
State Street v. Signature- business process patent-
a mathematical algorithm may be an integral part of a patentable subject
matter such as a machine or a process if the claimed invention as a whole is
applied in any useful manner.
Even after establishing that it is patentable subject matter you will
still have to pass the test of whether or not it satisfies the other
requirements of as valid patent namely: 1. Novelty 2. Non Obviousness 3. Prior
Art
Fair Use defense
Sec. 52
[(ab) the doing of any act necessary to obtain
information essential for operating inter-operability
of an independently created computer programme with
other programmes by a lawful possessor of a computer
programme, provided that such information is not
otherwise readily available;
(ac) the observation, study or test of
functioning of the computer programme in order to
determine the ideas and principles which underline any
elements of the programme while performing such acts
necessary for the functions for which the computer
programme was supplied;
Conclusion
1. idea/ expression dichotomy v. reality of software patents
2. The movement towards meta copyright _ DMCA and anti circumvention
technology
3. The movement away from copyright to contractual modes of protection
[Ed: Author has suggested that the issue is still unsettled. While the
typeface which represents the standard form in which a font is presented is
not copyrightable, programmes that create fonts using glyphs may be protected
under patent.
The dispute between Akruti font (A font in Kannada language used in India)
creators and Sheshadri Vaasu creator of of Baraha software assumes interesting
dimensions with the various decisions that have come to light.
Despite the strong views expressed by Mr Anand, the MD of the company
manufacturing Akruti fonts, it is felt that in the interest of the community,
fonts should be kept out of the copyright. In order to protect the community
against the impact mentioned above, the Indian Government or in its absence,
the respective State Government should take necessary steps to protect the
community from the onslaught of aggressive pursuance of Copyright.
Some definitions that are relevant for understanding the discussion.
Glyph: In the
context of modern computer operating systems, glyph is defined as a
shape in a font that is used to represent a character code on screen or paper.
ISO/IEC Standard 9541-1:1991 defines a glyph as a recognizable abstract
graphic symbol that is independent of any specific design. The distinct visual
representation of a character in a form that a screen or printer can display.
A glyph may represent one character (the lowercase a), more than one character
(the fi ligature), part of a character (the dot over an i), or a nonprinting
character (the space character).
Typeface: A specific set
of characters, numbers, punctuation and symbols having the same design and
weight. A typeface family would include all the various weights and styles
available for a particular design.
Font: A design for a set of
characters. A font is the combination of typeface and other qualities, such as
size, pitch, and spacing. For example, Arial is a typeface that , but within
Arial, there are many fonts to choose from--different sizes, italic, bold, and
so on. The height of characters in a font is measured in points, each point
being approximately 1/72 inch. In a simplistic sense, a font can be thought of
as the physical description of a character set. While the character set will
define what sets of bits map to what letters, numbers, and other symbols, the
font will define what each letter, number, and other symbol looks like. Fonts
can be either fixed width or variable width and independently, either
bitmapped or vectored. The size of the large characters in a font is typically
measured in points. ]
Related Articles:
Can
"Fonts" be Copyrighted?..Naavi
Copyright
on "Fonts"..Praveen Dalal
A case sent
by Mr Basil Almeida.
No Copyright on Fonts.?..."
It is ridiculous"
Are fonts copyrighted?.. extract from totse.com
