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Font Fortification: Bridging The Gaps in India’s Copyright Castle

Paper Details 

Paper Code: RP01V12023

Category: Research Papers

Date of Publication: December 06, 2023

Citation: Ms. Tejaswini Kaushal, Student, “Font Fortification: Bridging The Gaps in India’s Copyright Castle”, 1, AIJIPCA, 5, 5-13 (2023).

Author Details: Ms. Tejaswini Kaushal, Student, Dr. Ram Manohar Lohiya National Law University, Lucknow





ABSTRACT

The world of typography in Indian languages is currently blossoming as an artistic domain, offering endless prospects for Indic fonts, especially with the Latin-type market reaching its saturation point. While the popularity of Indian typography grows, its protection under copyright laws stays weak, exposing designers and corporations to the brunt of non-incentivized plagiarism of the designs. This article explores the copyrightability of typefaces in India, examining constitutional, statutory, and judicial perspectives. It compares international approaches and argues for increased protection, addressing economic impacts, incentive theories, and the IP-negative notion. It reevaluates the Aananda Expanded vs. Unknown case, counters flawed reasoning, and clarifies the eligibility of typefaces for protection. It emphasizes the need to align copyright law with evolving design practices and market demands, advocating for case-law precedents and legislative amendments. The article presents a comprehensive analysis of copyright issues surrounding fonts and typefaces, fostering a better understanding of their artistic significance and the potential for enhancing legal safeguards in India.

KEYWORDS

Copyright; Merger Doctrine; Incentive Doctrine; Typefaces; Fonts


Introduction

Peter Bilak, the co-founder of Indian Type Foundry, the first company in India dedicated to designing and distributing typefaces, thinks of typefaces as the “voice of the text.” Bilak’s company has been instrumental in advancing Indic fonts, crafting Devanagari styles, and spearheading projects for Kohinoor and Akhand typefaces. Typography in Indian languages has emerged recently as an artistic field, presenting boundless opportunities for Indic fonts as the Latin-type market becomes saturated. Unfortunately, while Indian typography gains recognition akin to Latin typography, its protection under copyright laws remains weak.

Based on this conundrum, this article tackles two key questions: (i) whether typefaces are copyrightable, and (ii) if not, whether they should be. Firstly, this article lays down the terminological and copyright framework for typefaces in India under the constitutional, statutory, and judicial domains.

Secondly, the article analyses the scenario of copyright protection given to typefaces in foreign nations and under the international law framework.

Thirdly, the article argues how the current protection granted to typefaces as computer software is insufficient, supplements the incentive theory claim, and refutes the intellectual property (IP)-negative claim to establish a case to further inclusion of typefaces under copyrights as artistic works.


Establishing the Foundation for Typeface Protection in India

Distinguishing the Terminology: Tomato-Tomahto

A ‘typeface’ encompasses a collection of characters sharing design elements, for instance, ‘Garamond,’ while a ‘font’ denotes a typeface variant, incorporating differences in size, weight, or style like bold or italics. The terms are often used interchangeably in the modern lingo, and both terms are treated similarly even under copyright laws. Hence, the term “typefaces” hereinafter encompasses both typefaces and fonts for the context of this discussion.

Examining the Current Landscape in India

Constitutional Discourse

The right to impart and receive information is a facet of the freedom of speech and expression, as outlined in Article 19(1)(a) of the Indian Constitution. Language plays a crucial role in this freedom . Many scholars argue that copyrighting typefaces would extend to the language itself, contradicting Article 19(1)(a). This view is supported by Article 21, which guarantees a “right to know.” In R.P. Limited v. Indian Express Newspapers, the Supreme Court has interpreted this right under Article 21 as essential for participatory democracy, surpassing the scope of Article 19(1)(a). It is claimed that granting copyrights on typefaces would restrict the dissemination of knowledge, thus infringing Article 21.

Statutory Discourse

A typeface comprises two crucial components: (i) the software or code-altering alphabet and symbol designs and (ii) the typeface’s aesthetic design. Copyright protection for typefaces involves analyzing Section 2(c) of the Copyright Act, 1957, which defines “artistic work” to include various creative forms. There are arguments against this proposition:

To be eligible for copyright, typefaces must meet the criteria of ‘original’ artistic work under section 13(1)(a). In the context of established languages recognized by the Constitution, claiming copyright in typefaces may be disputed. Once a language is constitutionally recognized, it becomes public property, precluding private ownership claims. Adding typefaces cannot convert it into private property, as it might lead to an indirect and colorable exercise of power.

Before claiming copyright for typefaces, it is essential to determine the first owner as per Section 17 of the Act. If copyright is based on another’s work, claiming violation due to the use of common material is untenable. In cases where language is a public asset, exclusive rights cannot be claimed.

Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services underscored that copyright is a statutory right with limitations. Copyright for typefaces can only be claimed within the Act’s stringent parameters and cannot be asserted otherwise. Since typefaces fall outside the Act’s scope, as illustrated above, they don’t receive copyright protection.

Even if typefaces are deemed eligible for copyright, their use can be governed by Section 52 and not be claimed as infringement. Furthermore, post-copyright grant misuse may lead to the granting of compulsory licenses.

Judicial Discourse

The legal perspective on copyright protection for typefaces has been cautious and constrained. The case of Aananda Expanded v. Unknown is a key precedent. The case involved copyright applications for typefaces, which the Copyright Office initially rejected. The Calcutta High Court later directed the Registrar to revaluate the matter. The applicant argued that typefaces required significant labor and skill, embodying originality and artistic craftsmanship. However, the Registrar’s subsequent rejection was based on two main points:

The Registrar contended that “any other work of artistic craftsmanship” in Section 2(c)(iii) of the Copyright Act should be read with Sections 2(c)(i) and 2(c)(ii). This interpretation excluded typefaces from copyright protection.

The Registrar argued that since the Copyright Act did not explicitly provide protection for typefaces and no international copyright conventions covered them, legislative intervention was necessary for their protection.

However, the legal system granted fonts a level of protection by classifying them as literary works and computer programs. This made it possible for applicants to request copyrights for the typeface, which served as the visual representation of the font code. However, scholars raised concerns about this categorization, fearing that copyright protection for computer programs might indirectly extend to typefaces, circumventing implied prohibitions, and falling under the colourable exercise of power.

Examining the International Framework

International conventions like the Berne Convention and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) do not address copyright protection for typefaces. However, member countries under the Berne Convention are free to determine how their laws regulate applied art, including typefaces, through legislative action. Furthermore, there exists a distinct international agreement called the ‘Vienna Agreement on the Protection of Typefaces,’ but since only a few countries became members and even fewer ratified, it was never enforced.

Foreign Nations

The copyright status of typefaces varies globally. In the American continent, the United States (US) has typefaces deemed to be unprotect able since 1976. The Copyright Office’s 1988 report reaffirmed this, citing legislative history that rejected copyright for typefaces. Regulations such as 37 C.F.R. § 202.1(e) and Circular 33 further establish that typefaces cannot be copyrighted, while Compendium practices emphasize this stance.

The “separability test” is applied, where artistic elements separable from utilitarian aspects might gain protection. Certain scholars suggest applying the Brandir Int'l v. Cascade Pacific Lumber test instead, which balances protection for expressive elements while minimizing functional aspects in utilitarian objects. Other cases, like Carol Barnhardt v. Economy Cover Corporation, Hart v. Dan Chase Taxidermy Supply Co., and Chosun International, Inc. v. Chrisha Creations Ltd., however, have established that while typeface design involves artistic choices, its feature of ‘legibility’ is utilitarian, refuting its copyrightability claim under this test. Moreover, the “Nimmer-Poe” test relies on the marketability of aesthetics over its utility, as per which typefaces qualify for copyrights. However, the present jurisprudence does not support this theoretical speculation.

While typefaces, as typefaces themselves, are not subject to copyright, alternative solutions involve protecting typefaces through design or software licenses. Software used to display typefaces can be copyrighted, as established by the US Copyright Office in 1992 and Adobe v. Southern Software in 1998. It was more recently witnessed in Font Brothers Inc. v. Hasbro Inc., where Hasbro was sued for using the “Generation B” font in its My Little Pony product without permission.

The Copyright Act in Canada protects original artistic works and stipulates that they must show the author's competence beyond simple mechanical creation and a fixed expression that excludes underlying ideas. Serifs are not a protected element in the context of typefaces, although a unique typeface's distinctive serifs might be. Typographers' ability to design distinctive typefaces is protected, but only as long as it pertains to their own works rather than generic alphanumeric letters. Digital fonts in the modern day come with copyright protection for the typeface design's source code.

To advance the Vienna Agreement on the European continent, the Schriftzeichengesetz ("Typefaces Law") was passed in Germany in 1981. Typefaces were given initial copy-right protection starting ten years after their original publication and continuing for fifteen years. Even more copyright protection is afforded to digitization into computer fonts than to computer programs. The 1989 copyright law in the United Kingdom (UK) specifically mentions typeface design copyright, however, this protection only applies for 25 years after the initial publication and does not cover typographers' use. In Ireland, copyright law encompasses typefaces and provides exceptions akin to fair use with a protection term of 15 years from initial publication.

In Asian countries, the landscape of copyright protection for typefaces is diverse. In Russia, specific regulations are absent, resulting in all typefaces being considered copyrighted, enabling payments to be collected under current law. Switzerland lacks dedicated typeface protection laws, although coverage through copyright and design law remains. Israel has also recognized the copyright to Henri Friedlaender’s Hadassah typeface and removed unauthorized digitizations from the market. On the contrary, Japan does not include typefaces under copyright, arguing that their primary function is conveying information rather than aesthetic appeal. South Korea’s Supreme Court similarly ruled that typefaces lack copyright protection due to their informational role. In most countries, copyright protection for typefaces is largely absent or treated akin to computer software. This parallels H.L.A Hart’s concept of “core” (definite legal stance) and “penumbra” (ambiguous legal stance) law areas, suggesting that the copyrightability of typefaces lies in the latter category and is, most unfortunately, not a central concern for most nations.

Constructing a Case for Typefaces’ Protection as Artistic Rights

Advocating for Increased Protection

As typefaces and fonts gain prominence in the digital age, the question of extending their copyright protection as ‘artistic rights’ gains attraction. A case for this can be based on the following arguments.

Typeface Design Plagiarism Despite Protection as Computer Software

Digitization is a two-sided coin: on one side, it has led to an increase in typeface design and demand, while on the other; it has made plagiarism and file-sharing easier. Historically, designing a typeface was a minor part of type production, and skilled punch-cutters would require 800 work hours to create typefaces. The task of plagiarizing took as much time as making the original copy. Today, it takes a mere click of a button.

While duplicating the digital file containing them could potentially infringe the copyright in the computer font as software, recreating them from scratch using font editing software, computer scans, and subsequent imports into font design software for manipulation or refinement are non-infringing methods to achieve a similar goal.

This ease of copying eliminates the need for extensive skills or heavy machinery, making knockoffs widely accessible and avoiding licensing fees. This is exemplified by Apple’s creation of pastiches of existing typefaces when introducing the Macintosh in 1984. Major foundries and tech companies like Apple and Microsoft create versions of widely used typefaces, like Times New Roman and Helvetica, to stay competitive or avoid licensing fees. Hence, the proliferation of typefaces is only protected in computer typefaces, not typeface designs.

Considering the Economic Impact of Non-Copyrighting Typefaces

Typefaces play a significant role in corporate branding, with examples like Coca-Cola’s Spencerian script logo and AT&T’s successful rebranding using a modified typeface. Typefaces in commercial branding are so crucial that even minor changes can trigger unexpected consumer reactions, as seen when IKEA switched from Futura to Verdana while changing nothing else. The customers’ wrath was so comically intense that it was dubbed the “Verdanagate.” Over the years, companies have invested billions of dollars in their branding through typefaces, underscoring the financial significance of typefaces for designers and corporations and emphasizing the necessity of protecting their artistic dimension.

Endorsing the ‘Incentive Theory’

The ‘incentive theory,’ also called the ‘welfare’ theory, takes a utilitarian approach to frame laws that enhance overall welfare. In the realm of copyright, temporary exclusivity incentivizes creative efforts. Hence, the lack of extension of copyright protection to typefaces leads to easy replication, reducing incentives and diminishing profits for designers.

Refuting the ‘Merger Theory’

The merger doctrine states that if expression and idea are inseparable and only one way exists to express the idea, they merge, rendering the expression uncopyrightable. It is contended that typefaces are artistic, unique in their numerous combinations of design elements, and separable enough to merit protection. Concerns arise for Indian typeface designers without explicit copyright safeguards, impacting competition with foreign counterparts and discouraging digital market contributions due to lowered entry barriers and piracy risks.

Negating the Categorization of Typefaces in the ‘Ip-Negative’ Industry

The ‘negative space’ concept in IP protection argues against the need for IP safeguards to promote innovation or creativity, suggesting that protection might hinder progress. Some claim that typefaces are an example of an IP-negative field, asserting that their abundance without copyright protection implies sufficient incentives for creation. However, this notion is flawed.

The typeface industry possesses multiple forms of IP protection, rendering it not truly IP-negative. Even without existing protections, applying IP-negative principles to typefaces would disrupt the industry. Although typefaces lack formal copyright, the industry’s reliance on licensing indicates the recognition of ownership and commercial rights. It underscores that typefaces’ value prompts private parties to craft agreements, suggesting a reliance on IP protection. While some norms guide designer behavior, they alone cannot ensure proper protection and enforcement. The industry’s roots lie in IP protection and the absence of such safeguards would damage it. The abundance of typefaces does not negate the necessity of IP protection, which incentivizes designers, promotes fair wages, and encourages creation. The growth of typeface popularity suggests that designers may earn more, and leveraging existing IP protections is more practical than advocating for their complete removal.

Integrating Typefaces into India’s Copyright Framework

Reanalyzing the Aananda Judgment

The Copyright Board’s decision in the Aananda case that typefaces are not copyrightable demands reconsideration. Firstly, the Board’s reasoning that typefaces are both utilitarian and artistic was based on the idea that if the aesthetic aspect cannot be separated from the functional aspect, it falls under the “merger doctrine” and cannot be copyrighted. While this rationale aligns with US copyright law, it does not hold in the Indian jurisdiction. In India, utilitarian aspects do not inherently disqualify a work from copyright protection. The Indian Copyright Act does not require a strict separation between utilitarian and non-utilitarian aspects. Instead, it demands that the total of these aspects be artistic enough to surpass the thresholds of originality and established doctrines.

Secondly, the argument made by Scaria and George in “Copyright and Typefaces” suggests that anything not explicitly mentioned in the Copyright Act is not subject to copyright protection in India. The Copyright Board’s interpretation of “any other work of artistic craftsmanship” in section 2(c)(iii) was flawed. The Board mistakenly applied the rule of ejusdem generis to restrict the scope of artistic works. However, this rule applies only when specific words form a distinct genus/category.

aintings, architecture, and photographs do not share common characteristics besides their artistic nature, which also applies to typefaces. Additionally, the phrase “any other work of artistic craftsmanship” does not follow the specific phrases as required by the ejusdem generis rule, indicating that it is a residuary clause to encompass eligible artistic works.

Thirdly, the argument against copyright protection for typefaces was based on their absence from international treaties. However, the lack of explicitly mentioning typefaces in these treaties does not automatically exclude them from copyright protection.

The Berne Convention grants countries flexibility in incorporating typeface protection into their legal frameworks. Hence, a judicial revaluation of the Copyright Board’s ruling to correct its flawed reasoning is necessary to determine the potential copyrightability of typefaces in India.

Addressing the Originality Dilemma

If we establish the inclusion of typefaces under section 2(c) of the Copyright Act, Section 13(1)(a) mandate for originality for copyright eligibility in artistic works is another debate. Copyrightability of new typefaces, with doubts arising due to their basis in pre-existing alphabets and symbols, is often referenced as the concern behind the potential lack of protection for typeface designs. However, this apprehension is misguided. New typefaces meet the originality criterion established in Modak v. Eastern Book Co., where the Supreme Court stipulated that a minimum level of creativity renders a work original. Similarly, in Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibbe, the Court established the“sweat of the brow” test for originality, which mandates a certain level of effort and authorship attribution, both of which are satisfied by the creation of new typefaces, involving substantial effort in design and coding, thus conclusively fulfilling established standards for originality determination.

Based on the aforementioned contentions, typefaces are meritoriously eligible for copyright protection in India.

The Way Forward

It is essential to reconsider the prevailing reluctance to grant copyright protection for non-conventional works like typefaces in India. In the digitalized age, the ruling precedent of Aananda requires a renewed interpretation to remove the Court’s outdated approach and recognize the craftsmanship elements of typefaces. While the abundance of similar typefaces might complicate establishing original creative expression, copyright can still be granted on a case-by-case basis if evidence of originality exists.

The demand for typeface protection as both a literary work (computer program) and a non-conventional artistic work stems from the scope of protection each provision offers. Copyright for a computer program safeguards the entire code’s functioning, making protecting each alphabet/symbol impractical. However, protecting typefaces as artistic works extends coverage to each original element, rectifying this limitation and allowing broader protection.

Two approaches can be adopted to rectify the persisting void in protective laws. One strategy, primarily to counter the merger doctrine, can be amending the Copyright Act for its definitions to include typeface protection explicitly. However, a more efficient approach would be for courts to set precedents that broaden the application of “other work of artistic craftsmanship” and expand the definition of “artistic work.” Attempting to specify all non-conventional works in the Act could be counterproductive, potentially excluding unforeseen forms of creativity. While the current legal provisions are adequate, what holds greater significance is the precise interpretation of these provisions by the judiciary.


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  78. [1] Ibid.

  79. [1] Evans (n 9).

  80.  [1]Evans (n 9).

  81. [1] Jain  (n 77).

  82. [1] Jain  (n 77).

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  84. [1] Ibid.

  85. [1] n 80.

  86. [1] n 80.

  87. [1] Scaria (n 22).

  88. [1] Kavalappara Kochuni v. States of Madras 1960 AIR 1080.

  89. [1]Ibid.

  90. [1] Berne (n 31).

  91. [1] Berne (n 31).

  92. [1] Copyright (n 13).

  93. [1] Copyright (n 14).

  94. [1] Summerfield VD and Zielaznicki KM, ‘An IP Law Recipe for Alphabet Soup: Typefaces and Fonts’ (Lexology, 20 March 2023) available at: <www.lexology.com/library/detail.aspx?g=abc0dc65-3120-4a61-a9c1-6fde0b7b6046> accessed 16 August 2023.

  95. [1] 2008 1 SCC 1.

  96. [1] 1995 PTC (15) 278.

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