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Copyright Office

[Docket No. 86-4]

Policy Decision on Copyrightability of Digitized Typefaces

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of policy decision.

SUMMARY: The purpose of this notice is to inform the public that the Copyright Office has decided that digitized representations of typeface designs are not registrable under the Copyright Act because they do not constitute original works of authorship. The digitized representations of typefaces are neither original computer programs (as defined in 17 U.S.C. 101), nor original databases, nor any other original work of authorship. Registration will be made for original computer programs written to control the generic digitization process, but registration will not be made for the data that merely represents an electronic depiction of a particular typeface or individual letterforms. If this master computer program includes data that fixes or depicts a particular typeface, typefont, or letterform, the registration application must disclaim copyright in that uncopyrightable data.

EFFECTIVE DATE: September 29, 1988.

FOR FURTHER INFORMATION CONTACT: Dorothy Schrader, General Counsel, Copyright Office, Library of Congress, Washington. DC 20559. Telephone (202) 287-8380.

SUPPLEMENTARY INFORMATION:

Background
Under section 410(a) of the Copyright Act of 1976, title 17 of the United States Code, the Register of Copyrights determines whether the material submitted for registration "constitutes copyrightable subject matter and that other legal and formal requirements have been met" before issuing a certificate of registration.

To be registrable and copyrightable, a work must constitute an "original work of authorship." 17 U.S.C. 102. Useful articles are not protected except to the extent the articles contain artistic features capable of existing separately and independently of the overall utilitarian shape. Variations of typographic ornamentation [or] "mere lettering" are not copyrightable. 37 CFR 202.1(a). In Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978), the Fourth Circuit upheld the Office's refusal to register a claim to copyright in typeface design under its then regulation, 37 CFR 202.10(c)(1978) [now codified in the Copyright Act in the definition of

"pictorial, graphic, or sculptural works"]. The Eltra court reasoned that "it is patent that typeface is an industrial design in which the design cannot exist independently and separately as a work of art." 579 F.2d at 298.

The decision in Eltra Corp. v. Ringer clearly comports with the intention of the Congress. Whether typeface designs should be protected by copyright was considered and specifically rejected by Congress in passing the Copyright Act of 1976. The 1976 House Report states: A "typeface" can be defined 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 in articles whose intrinsic utilitarian function is for use in composing text or other cognizable combinations of characters. The Committee does not regard the design of typeface, as thus defined, to be a copyrightable "pictorial, graphic, or sculptural work" within the meaning of this bill and the application of the dividing line in section 101. [H.R. Rep. No. 1476, 94th Cong., 2d Sess. 55 (1976)]. In rejecting copyright protection for typeface designs, the Congress in addition deferred a decision on a more limited form of protection under proposed ornamental design legislation. Title II of the 1976 copyright revision bill as passed by the Senate could have protected typeface designs, but the House of Representatives had doubts about even this limited form of protection. Consequently, only copyright revision passed. H.R. Rep. No. 1476 at 50 and 55. Design legislation has yet to be enacted, and Congress has chosen not to include typeface designs within, the Copyright Act's definition of pictorial, graphic or sculptural works.

The Copyright Office has received applications. to register claims to copyright in material variously termed "data," "database," "computer program," "compilation of data," and "typefont data set," which relate to, or represent, digitized versions of typeface designs. A Notice of Inquiry was published in October 1986 requesting public comment regarding the registrability of this material. ((51 FR 36410 (Oct. 10, 1986)). The Notice raised primarily four questions about the nature and extent of any copyrightable authorship in digitized typography, apart from the typeface design itself: whether there exist a variety of ways to express instructions for creating the same typeface design; are there any copyrightable elements, apart from the unprotectible typeface design, which comprise the "original work of, authorship;" does the "information,"

"instructions," or "data" comprise a computer program, compilation or database; and, finally, if.registration is permitted, what would be the appropriate form of deposit?

The comment period was extended twice (52 FR 3146 and 52 FR 23476) to allow full public comment. A total of 19 initial and reply comments were received, including a videotape demonstration of the digitization process and other exhibits.

Technology and the Digitizing Process
In describing the process of the digitization of typefont characters, the Office will employ technical terms, for which we adopt the following. definitions. "Digital typefont" is a bitmapped digital representation of an actual analog typeface design, stored in binary form on magnetic or optical media, or Read-Only-Memory (ROM) mounted on a circuit board. Sometimes, the ROM on the circuit board is assembled into a plastic cartridge which is inserted into a laser printer or other microprocessor-driven device. When decoded and interpreted, by the "bitmapping code" software, the digital representation of the design will reproduce the appropriate character. "Bitmapping" refers to the technology that allows control of individual pixels on a display screen to produce graphic elements of superior resolution, permitting accurate reproduction of arcs. circles, sine waves, or other curved images. A "bitmapped character," whether used on a computer screen or on a dot-matrix or laser printer, is a dotted representation of an analog letter or character image where dots are so close together that when reduced to actual printed or displayed size, they form an image or character without the need to connect the dots.

To create a digitized typeface from an existing analog typeface, analog visual representations of characters are scanned and represented as a collection of discrete picture elements, called pixels. Pixels can be efficiently encoded in digital form on any convenient storage medium. The medium can be magnetic (e.g. tape, disk or diskette), electronic (e.g., ROM cartridge), or optical (e.g., video-disk). The encoded digitized representation is then organized as bits of information, manipulated and changed (usually reduced to minimize storage requirements) and placed in a format usable with a specific program and compatible digital typesetter.

Typically, a specialized computer circuit in the printing device reads the information from the storage media or