Background
In typography a “typeface” is considered to be a set of glyphs representing individual letters, symbols, marks or punctuations. During the 19th century wood was used as a material for developing the so-called wood types. The 20th century allowed for the mechanization of typesetting. The first machine for typefaces was created by Ottmar Mergenthaler. Later on during the 1970s the machine typesetting was replaced by phototypesetting equipment which evolved in the current digital typesetting.
The design of a typeface may require a large period of time. Examination and processing of different styles, say for example the basic- roman, italic, bold roman, and bold italic, is a major investment of time and effort. Like other artistic forms type is created by professionals in the field. Since the works of other writers, sculptors, singers, etc may be protected as intellectual property, it is logical to ask ourselves whether the typographic typeface may enjoy the same copyright protection.
Copyrighted works in Bulgaria
Copyright (or authorship right) is a legal term used to describe the rights that creators have over their works. Works protected by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, technical drawings, etc. In order for something to be recognized as an object of copyright protection, it should be the result of the author’s creative activity. In terms of typefaces this leads us to the question whether they may be considered as an object of copyright law and in particular – are they the result of creative activity. Of course, the creation of a typeface involves both intellectual and physical efforts as inevitably does almost every human activity. The question, however, is whether the activity of the creation of typefaces is creative enough in order for typefaces to be considered copyright protected works. During the past years experts in the field have made arguments in both directions.
Typefaces and Bulgarian copyright law
The main argument in favor of the thesis that typefaces should be granted copyright protection is that a typeface’s design is dictated by more than merely functional considerations and is influenced by aesthetic decisions. Copyright of typeface can be seen in two different ways. First, copyright over the design itself and second copyright over the font in which the design is implemented. Nowadays typefaces exist primarily as computer fonts. Typeface designers claim that the efforts invested in making a different typeface should be taken as a creative work tantamount to art – changing letters size, form, layouts, adding ornaments or extra features and making other aesthetic changes. The defenders of this position hold that typefaces cover all of the requirements of copyright. First, the originality comes with its author and that author’s unique personality. A typeface may originate with a certain designer. In addition, there is the assumption that typefaces might be considered as a work of art, because its use is not merely to communicate but also to express and distinct. The brightest example in this direction is the usage of different typefaces in the advertising industry. Advertisers carefully choose the appropriate typeface in order to evoke emotions and feelings in consumers. Some legal systems consider typefaces to be copyrightable. English law, for instance, determines typefaces as a part of the copyright law but grants them only 25 years of protection. Irish copyright law also protects typefaces with a term of up to 15 years from their publication.
Countries such as Germany and France offer special protection to typefaces but do not treat them as objects of copyright protection. Those are the only two countries which ratified the 1973 Vienna Agreement on Protection of Type Faces and their International Deposit.
Contrary to what have been examined, there is also very strong and wide opposition regarding copyright protection over typefaces. The basis for that is that no one may claim ownership over the alphabet. This leads us to the functionality of the typefaces – typefaces simply convey information which in any case makes them functional. A typeface is considered to be a set of letters, numbers, or other symbolic characters, which forms are related by repeating design elements consistently applied in a notational system and are intended to be embodied in articles whose intrinsic utilitarian function is for use in composing text or other cognizable combinations of characters. Accordingly, one may conclude that there is not much room for art when it comes to typefaces. Typographers do not indeed create but rather use already invented basic materials. In addition to that nowadays known letters have existed for centuries (for instance the letter “A” is the same both in the Latin and Cyrillic alphabet). In this line of thought the aesthetic approach is often not enough to produce a new object of copyright law. Moreover, typefaces are very similar to one another and distinguishing between them may be almost impossible. But probably, the most significant concern is that if there were a copyright protection over typefaces there would be a person conferred with copyright. This might lead to a situation when letters are protected and using those letters for communication might turn out to be infringement of copyright law. And then we go back to the issue regarding ownership over letters. Currently many legal systems do not grant copyright protection of typefaces. Countries such as the USA, Switzerland, and Japan consider the typefaces to be only means of communication and hence copyright protection is expressly excluded by law.
Typefaces in the digital era
When we are discussing the relation between copyright law and typefaces we should pay a special attention to how different typefaces are created nowadays. In the past typesetting involved the use of metal angle, composing stick, gauge line, etc. Today a new typeface can be easily created for several hours using a computer program. Indeed designers often use computer programs in order to generate the font file. This leads to the assumption that in such cases it may be doubtful if they may be seen as authors who create works of art. While “typeface” is the set of letters or other symbols, “font” is the result of industrial process of implementing typefaces in the printing process. In the digital age those two often cannot be distinguished because technology can create both of them at the same time. This is precisely why in many legal systems typefaces are protected as industrial designs only, ie as industrial property instead of copyrighted works. One can create thousands of different typefaces which have almost invisible differences or visible only if the letters a magnified thousand times. Claiming copyright in such situations would be irrational and unjustified.
However, it is widely accepted that computer software may be an object of copyright law. Thus, a generated source code which is used to create different styles of typefaces may be copyrightable as a computer program.
Current status of typefaces in Bulgaria
The copyright legislation in Bulgaria has adopted a balanced approach with regard to typeface protection. Generally, typefaces are protected as industrial designs under the Bulgarian Industrial Design Act. (IDA).
On the other hand, the Bulgarian Copyright and Related Rights Act (CRRA) grants certain protection to the artistic design. This means that it conceivable to assume that in some cases Bulgarian copyright law might protect, for example, painted typefaces as works of graphic art. Painted typefaces, however, are substantially different from typographic typefaces, as is artistic design from industrial design.
The difference between the two types of protection is that under the IDA the design of a typeface may be protected as industrial property after its registration with the Bulgarian Patent Office for a period of 10 up to 15 years while copyright protection under the CRRA would last the life of the author plus 70 years and does not require any registration. Last but not least, the prerequisites to what may be recognized as copyrightable work, on the one hand, and industrial design, on the other hand, are also substantially different.
On a recent occasion “Delchev & Partners” has successfully represented a client in a dispute concerning the possible (non-)existence of copyright protection of typefaces. Disputable arguments in the proceedings included whether typefaces are in general copyrightable, the difference between painted and typographic typefaces, difference between copyright and industrial design protections, to what extent Bulgarian copyright law protects artistic typefaces and who can claim ownership over them. The court concluded that the typographic typefaces at hand might not be subject to copyright protection as they did not constitute artistic works for copyright purposes. Instead the court held that they might be subject to industrial design protection as industrial property. The court also pointed out as an aside that hand-painted typefaces might be copyrightable.
