The scope of Indian Copyright Law has expanded immensely with newer types of literary, dramatic etc. creations. Fonts and Typefaces are constantly under question with this regard. However, before we delve into the issue of whether Fonts and Typefaces are Copyrightable or not. Many wonder if typefaces and fonts are the same thing. To put more simply, font has become an umbrella term which is used and misused more often than not.
Typeface is a type of glyph or something that shares a common design. Example- Helvetica is a typeface. On the contrary, Font is a set glyphs within a typeface. Thus, An 8 point Helvetica is different from a 12 point Helvetica. Fonts can be big or small, bold or light etc. They are a subset of the same typeface.
Historically, the difference between font and typeface was quite essential considering the text was set by hand before it was printed. A typesetter would be used to set type letter by letter from a particular case. The same was stored in wooden drawers named job cases. Font was considered as a job case in itself.
Fast forward to today when we type letters on the Microsoft Word, the term font is more familiar to us than typefaces. Multiple fonts can be applied to a text while composing a document (such as Times New Roman, Calibri etc.). This happened due to desktop publishing, now the public treats font and typefaces as synonyms, if not completely unaware of the concept of “typeface” altogether.
Finally, to put these to concepts simply, Typefaces represent a family of fonts such as Times New Roman and font refers to the width, weight, shadow impact and style of a particular typeface giving it variation.
JURISDICTIONAL ANALYSIS ON COPYRIGHT PROTECTION FOR FONTS AND TYPEFACES
Copyright protection given to typefaces and fonts or its lack thereof isn’t really a core legal issue, yet it is significant to portray the extent of copyright protection and the technicality on which the criteria of copyright protection thrives on. To answer this question preliminarily, it is imperative that we mention Eltra v. Ringer decision passed in 1972. In this case the appellant sought to register fonts as works of art under the copyright law. The Copyright Office refused registration stating that “fonts have no elements, either alone or in a combination which can be separately identified as art work”.
Most jurisdictions don’t give copyright protection to fonts. Following are the 3 main jurisdictions where there exists a considerable level of Laws related to copyright protection.
The United Kingdom
- In the UK typefaces are protected under the head of artistic works.
- The “Copyright, Designs and Patents Act of 1988” enacted in the UK provides certain exceptions to copyright infringement w.r.t typefaces.
- Section 54 of this Act gives three exceptions, which directs us to interpret that typefaces can be used in the ordinary course of typing or printing and it won’t be counted as copyright infringement.
- Interestingly enough scholars have stated that this provision is mainly directed towards the protection of users against unnecessary liability.
- The exceptions only exempt users using the typefaces as it should be in its ordinary course of typing and not people who try to sell, manufacture or distribute them.
- Moreover, another significant observation is that the protection of typefaces is limited to 25 years only.
The United States
- On a cursory reading of Section 101 of the Copyright Act, 1976 of USA, it is observed that extending copyright protection to typefaces is a dicey area and there is a complete lack when it comes to the language used by the drafter.
- In fact the US submitted the same stance to WIPO. The US government stated that typefaces don’t enjoy copyright protection under municipal law.
- However, the related software code to the typeface is copyrightable.
The Indian scenario
- The Copyright law followed in India was established in 1957 and it is silent on the copyright entitlement of typefaces-designs.
- On a presumptive analysis of the Copyright Act, 1957, it would seem that typefaces and fonts are not protected whatsoever.
- In 2002, in the “Re Anand Expanded Italics Case”, this exact question was raised.
- In this case the Copyright Board didn’t recognize fonts and typefaces as being copyrightable.
- Thus, the legal position in India is clear that typefaces and fonts don’t have any copyright protection.
Copyright Board’s Reasoning
- Fonts have an aspect of utilitarianism; they are the essence of letters, numbers which ultimately are the building blocks of the words that are formed using the same.
- The basis for this argument relies on the established principles of copyright protection.
- The main point being that fonts can only be copyrightable when the artistic aspect is separable from the it’s functional aspect. This case applied the same concept to the issue raised, further stating that no matter how artistically a text has been written, if the aesthetic embellishment is inseparable from the functional aspect, which is the letter itself then the font is cannot be granted copyright protection.
- Another argument put forth is that none of the international treaties that place international standards of copyright protection such as Berne Convention, TRIPS Agreement, Rome Convention, make any explicit attempt to mention fonts and typefaces.
- This point was adopted as a valid ground for denying copyright protection to fonts in the Anand case (by the Copyright Board).
- One of the other arguments was that since the rights and liabilities related to copyright emerges from the Copyright Act, 1957 in India, adequate attention must be paid to Section 16 of the Act.
- In the above mentioned Scaria and George article as well, the authors mentioned that any right or subject matter or its scope thereof not specifically enumerated or mentioned under the Copyright Act is to be considered as beyond its purview.
After going through a brief international perspective and the Copyright Board’s argument in the Re Anand Case, it is clear that in most jurisdictions fonts and typefaces are not protected. The UK provides a very limited protection to Typefaces. The arguments placed by the Indian Copyright Board are also quite logical. The extent of “artistic craftsmanship” and its eclipsing concept of Utilitarian theory which is the basis of copyright protection directs us to the fact that it has to be interpreted to the extent of the law unless there is an absolute need to protect typefaces. The question posed is simple but its implications have been very well discussed by the Copyright Board.
- Filing of a Copyright Form by the applicant based on which we will be filing Form IV at the Copyright Office.
- Once, the forms and the copies of the work are received we can go for e-filing.
- Once form IV is prepared online, we will be sending it to the client for signatures Submitting the signed Form IV online.
- Sending hard copies of 1 hard copy (print) of “Acknowledgement Slip” and 1 hard copy (print) of “Copyright Registration Form copyright work to the Copyright office.
- Receiving a dairy number from the Copyright office and 30 days mandatory waiting time for any objections.
- Prosecution of the Copyright. In case of Objections: In the case of any objection, a letter is sent to both the parties and are heard in front of the Registrar of Copyright.
- If the objection is suspended then a verification is done by the Examiner.
- Finally, the application is approved by the registrar, after which a certificate is issued.
- Note: All kinds of literary and artistic works, computer program, and even websites can be copyrighted. Computer Software or program can be registered as a ‘literary work’.