Page:The Copyright Office, Policy Decision on Copyrightability of Digitized Typefaces.pdf/2

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cartridge and causes a laser beam to draw a representation of a particular typefont character on a cylindrical surface in direct response to the digital data and instructions in the media or cartridge. This image is then transferred by a process, similar to printing, to paper from which the information is read or the printer may drive a set of wires against an inked ribbon that places dots on the paper. The visual representation appears once again.

There are basically three techniques applied to represent characters digitally: Bitmapping, outlining and stroke definition. A digitized typeface could be prepared by bitmapping alone, but it is more common to use a combination of the three techniques to improve the quality of the typeface.

Bitmapping is a dot-by-dot representation of each character. A different bitmap is required for each size and style of a character, and there are several ways to create a bitmap. The most popular ways are by scanning black and white images, scan converting a digital outline representation (soft scanning) using software written for this purpose, building up an image bit-by-bit using an interactive editor on a computer, and through a combination of scanning and editing.

In the outline method, lines or curves define the boundaries of typeface characters. The outlines can consist of straight line segments only or straight line segments along with abstract representations of the curves. The digital information, comprised of instructions and data, is fixed by a computer operator who digitally locates only the outlines of characters. In order to form a completed letter on a screen display or on paper when printed out, an outline font program instructs a computer or printer logic to fill in the outline of the character. If a laser printer is used, the beam sweeps from side to side or up and down within the boundaries of the letter, filling in the bounded area with dots that will show up as solids on the paper or screen.

In the stroked definition method, characters are represented like the "strokes" of a pen or brush following the path of a straight or curved line. The computer operator must define the characteristics of the "pen" or "brush," such as what occurs at corners and stroke endings. Ultimately, these descriptions must be converted into bitmaps.

Finally, digitization techniques may be used to create a new typeface-one that has no prior analog counterpart.

3. Summary of Comments

The Copyright Office received 19 initial and reply comments in response to its Notice.

Two comments maintain that the digitized typefaces are not copyrightable. The first argues that the only difference between the digitized version and the unprotectible typeface itself is that the former is "read" by a machine to create the visually perceptible typeface. The "look-up" table in a bitmap, this comment continues, is a one-on-one correlation which involves no creativity. The algorithms used in the outline method likewise involve de minimis judgment and creativity. Finally, the commentator cautions that protection of digitized versions of typeface may inhibit the standardization of character matrixesmatrices [sic] that facilitate the compatibility of software for personal computers.

The second comment opposing registration declares that bitmaps are static data, fixed representations of images at a given resolution. This comment compares the static dot pattern representation of each letter to the patterns cast and carved onto metal in medieval times.

In support of registration, eleven comments espouse variations of the basic proposition that the data and instructions which comprise the digital typefont are computer programs, copyrightable databases or some protectible hybrid of the two. The themes which run through their various comments are that the data and instructions are a "work" apart from the typeface itself, the "work" is "used directly or indirectly in a computer to bring about a certain result" and qualifies as a computer program within the meaning of section 101 of title 17, and/or the ultimate shape of the typefont character does not predetermine its digital representation and elements of human selection and arrangement are required, constituting a protectible database.

One comment states that the "work" is a computer program which operates on a data stream and is configured in a particular format. Another amplifies this position, explaining that execution of the program calls up stored data in the form of digitized typeface instructions and converts the instructions into printed typeface characters.

Two comments take the position that the "rule of doubt" should be used. The first argues that digitized databases are both, databases and programs, and, since neither can be read by the Office, ultimately the courts should decide on their copyrightability. This comment advocates that, in any event, the "work" is protectible as a program, compilation or separately as a literary work. Another comment claims protection for the edited, compiled set of instructions and data as a literary work. The second comment espousing rule of doubt would limit the registration to the typeface database.

Several comments state that not all typeface programs and databases are protectible. Purely mechanical translations from analog to digitized typefaces, they acknowledge, are not copyrightiblecopyrightable [sic]. For example, they state that protection should not be extended where an analog typefont is merely scanned into digital form with no editing or selection of font characteristics, or where there is mere duplication of preexisting digital typefont without further editing.

One comment recommends considering typefont a special class of program. Another one opines that the protectible work is a digital photograph. Copyrightable expression attaches, another comment contends, in that programming choices exist apart from the functional data and algorithms utilized in the program expressing the typeface design.

One comment recommends protecting the typefont as a software/database hybrid. The "work" is the integration of all elements of the software and database. The software should be protected separately also, this comment continues, because it is a different work then the typeface, and programs are protectible, it is argued, even if they ultimately produce an uncopyrightable end product.

Another comment describes the choices inherent in font digitization, and argues that the combination of data and instructions statisfiessatisfies [sic] the Copyright Act's definition of the term "computer program." The digital image, it maintains, can be represented in different computer languages using different techniques. This comment also states that no distinction is drawn at the machine language level between data and instructions. In general purpose programming languages, the surface separation between data and algorithms is for the ease of human programmers. Programs are like sentences: Algorithms (verbs) act upon data (nouns). In some languages, data and algorithms are tightly bound in a single program. In others, the data and algorithms are initially stored separarelyseparately [sic], though they must be conjoined in order for the computer to successfully execute the instructions for rendering digital type. This comment further argues that the