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Controversies related to copyright protection of typeface fonts from the perspective of judicial practice

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Reprinted from Zhichanli.com, original text link: [Click here] (https://www.zhichanli.com/article/1800.html) In recent years, with the wide application and commercial operation of fonts in fonts, the copyright of fonts in fonts Conservation issues have gr

Author| Zhu Yuzi Li Mengxue Beijing Haotian Xinhe Law Firm


(This article is the exclusive publication of Intellectual Property. Reprinting must obtain the author's consent, and the source of the article should be indicated in a prominent position.)


(This article is 5036 words, it takes about 11 minutes to read)


The advancement of digital technology and the diversification of market demand jointly gave birth to the rise and development of the Chinese font industry, and related intellectual property disputes followed. Without exception, the development of technology and industry always precedes legal regulations. Therefore, disputes between market players, disputes between judicial practice, academic theories, and judicial practice and academic theories also arise. This article mainly uses relevant cases as the starting point to sort out the disputes related to copyright protection of fonts and fonts, analyze the origin of the disputes, and explore the path to resolve the disputes, in order to provide some reference for the settlement of copyright infringement disputes related to computer fonts.


From my country’s first font font copyright infringement case in 2003 (Founder v. Weifang Wenxing case), to Zhongyi v. Microsoft, Founder v. Procter & Gamble, Founder v. Blizzard and other influential cases in the industry, to last year’s Xiangjia Hong v. "Nine-story Demon Tower" font infringement case, etc., looking at the infringement disputes related to computer fonts and their individual characters in recent years, it is not difficult to see that the main disputes in such cases are reflected in the following aspects: 1. Computer fonts Whether it constitutes a computer software work; 2. Whether the computer font can be protected as a work of art; 3. Whether a single character in the font of the font can be protected as a work of art.

1.

Whether a computer font library constitutes a computer software work


In the first-instance judgment of Fangzheng v. Weifang Wenxing case, the Beijing No. 1 Intermediate People's Court held that: "Founder Lanting V4.0 is a computer font library created by Founder Company, which is a collection of digital representations of characters. The font library composed of coordinate data and instructions can be executed by computers, and belongs to the computer software stipulated in China's "Computer Software Protection Regulations" and is protected by the regulations." [1], the Beijing Higher People's Court of the second instance of the case held the opposite view, holding that : "The descriptions of data coordinates and function algorithms in the font library are not instructions referred to by computer programs, and the font library can only be called by specific software, and cannot run and produce certain results by itself. Therefore, the font library does not belong to the "Computer Software It is not a program under the statute of protection, nor is it a document of a program."[2]


After that, the courts of the first instance and the court of second instance in the case of Founder v. Blizzard once again disagreed on this issue. The court of first instance continued the view of the court of second instance in the Fangzheng v. Wenxing case, denying the attributes of font software works[3]. The display and output of related fonts and fonts, the content of which is the combination of font outline construction instructions and related data and font outline dynamic adjustment data instruction codes, which generate operating results after being called by specific software, and belong to a type of computer system software. It should be determined that it is a computer-executed coded instruction sequence made to obtain relevant fonts and fonts that can be displayed on the output devices of computers and related electronic equipment, so it falls under Article 3(1) of the "Computer Software Protection Regulations" The computer programs specified in this item are works in the sense of copyright law.” [4]. This point of view was also extended in the 2012 second-instance judgment of Zhongyi v. Microsoft [5]. So far, the dispute over the legal attributes of computer fonts has temporarily come to an end. Although there are still no corresponding laws and regulations or judicial interpretations to clarify the specificity, in recent years, disputes over the font infringement of fonts have rarely involved disputes over the attributes of fonts. There is almost no related discussion.


In judicial practice, it is usually only in the case of using one or more fonts in a computer font as a whole (for example, other font manufacturers directly copy and use font software, phototypesetting software manufacturers directly input font software into their printing software programs) sold together), it will involve the identification of the attributes of computer fonts. In fact, the reason for the dispute over the legal attributes of computer fonts in the above cases is not the absence of legal provisions, but the deviation of understanding of existing legal provisions. Article 2 of the "Computer Software Protection Regulations" clearly stipulates that computer software "refers to computer programs and related documents", and Article 3 clearly stipulates that computer programs "refers to devices with information processing capabilities such as computers that can be used to obtain certain results. coded instruction sequence that is executed, or a symbolic instruction sequence or a symbolic statement sequence that can be automatically converted into a coded instruction sequence", here it is not required that the relevant coded instruction sequence run by itself and produce a certain result, on the contrary, the code A computerized instruction sequence can be executed by a device with information processing capabilities such as a computer to obtain a certain result. The content of the computer font format is the combination of the font outline construction instructions and related data formed by the Truetype digital font description technology and the dynamic adjustment data instruction code of the font outline [6], which can be executed by the computer to obtain the display and output effects of the font , which is a computer program, should constitute computer software protected by the Copyright Law. Moreover, the overall protection of computer fonts as software works is conducive to curbing and reducing piracy and infringement of fonts, and is conducive to the healthy and orderly development of the font industry [7].

Second,

Can computer fonts be protected as works of art


Both the court of first instance and the court of second instance in the Fangzheng v. Weifang Wenxing case held that: “The fonts in the font library are digital representations of characters independently created by Founder Company, and are aesthetically pleasing graphic art works composed of lines. Works of art that fall under the provisions of the Copyright Law of our country are protected by the Copyright Law of our country." [8]. The court of first instance in the Fangzheng v. Blizzard case also adopted the above point of view, but the Supreme People’s Court of second instance rejected the finding of the court of first instance on this issue, holding that “each typeface (font library) in the font library is composed of instructions and related data, not by lines. A flat or three-dimensional plastic art work with aesthetic significance composed of , color or other means, so it does not belong to the fine art work in the sense of copyright law[9]”. In addition, the court of second instance also distinguished "printed fonts, computer fonts" and "fonts generated after being called and run by computer fonts" in this case, and held that "due to certain restrictions on the structure and expression of Chinese characters, after Whether the fonts generated after the related computer software is called and run has originality in the sense of copyright law needs to be determined after specific analysis. "


There are several reasons for the above disputes about the properties of computer fonts:


1. Unlike calligraphy works, the "Copyright Law" does not clarify the concept of fonts and their legal protection .


2. In actual disputes, the plaintiff usually claims different rights for different objects in the same case from a conservative perspective, but does not clarify the differences between different objects. For example, in the case of Fangzheng v. Weifang Wenxing, against Wenxing Company’s embedding of the Founder Lanting font library in its Wenxing 2000, Founder claimed that Wenxing Company infringed the font software copyright and the font font copyright at the same time; In the case of Founder v. Blizzard, the rights claimed by the plaintiff in the first instance and in the appeal include the copyright of computer software, the copyright of the 5 fonts of Fangzheng Lanting Font, and the copyright of art works for each Chinese character. It can be seen that the plaintiff’s petition mentioned several objects, namely fonts, fonts (font styles) and individual characters, but the expression forms of different objects have not been clearly defined. The different understanding of the form of the object is not unrelated to this. For example, in the Fangzheng v. Weifang Wenxing case, the court of first instance and the court of second instance believed that the font was "made up of lines", while in the Fangzheng v. Blizzard case, the court of second instance believed that the font was "composed of instructions and related data constitute".


3. The overall use of fonts in fonts is closely related to the overall use of computer fonts. The overall use of fonts also constitutes the overall use of fonts, such as the use of fonts in the online game "World of Warcraft" in the case of Founder v. Blizzard), which can easily lead to confusion of the objects used (fonts and fonts in fonts). As a result, some courts have distinguished between fonts and fonts in the trial process of cases (for example, the court of first instance in the Fangzheng v. Weifang Wenxing case held that "Fangzheng Company, as the author of the The font of each character in the font and the font software composed of the data coordinates and instruction programs of these characters are copyrighted.”[10]), and some courts did not actually Distinguish between fonts and fonts in fonts, but choose one of them to determine the object protected by the Copyright Law (for example, after the court of second instance in the case of Fangzheng v. There is a one-to-one correspondence with the corresponding font, and they are two expressions of the same object.In copyright law, it should be protected as a work[11]”;Founder The court of second instance in the v. Blizzard case, after affirming that the font library constitutes a software work, held that “each typeface (font library) uses related specific digital functions...not a flat or three-dimensional plastic art with aesthetic significance composed of lines, colors or other methods. work, so it is not a work of art in the sense of copyright law[12]”).


It can be seen from this that the disputes about the font properties of the font library in the above cases , which is essentially a dispute over the expression form of fonts in fonts. If the form of expression of a font font is understood as an object composed of lines, then when the lines, stroke thickness, and straight design of a font font can reflect originality, it cannot be ruled out that the designed font font has aesthetic significance and can be protected as a work of art possibility; if the expression form of the font font is equivalent to the instruction or data used for computer calling and running, it must not be protected as a work of art.

3.

Whether a single character in the font of the font can be protected as a work of art


In the case of Founder v. Blizzard, Founder v. Procter & Gamble, and Hanyi Company v. Kunshan Xiaobaxi, the courts at all levels have different judgments on whether a single character in a Chinese font can enjoy the copyright protection of a work of art.


The opinion of the court of second instance in Fangzheng v. Blizzard case is: “Because of the characteristics of the structure and expression of Chinese characters are limited to a certain extent, whether a single character produced by the relevant computer software has originality in the sense of copyright law needs to be determined. It can still be determined after specific analysis." And "in view of the fact that Chinese characters have the function of expressing thoughts and transmitting information, the use of the above-mentioned Chinese characters by Blizzard and The Ninth City Company in the operation of their games is the use of their functions of expressing thoughts and transmitting information. Regardless of whether the aforementioned Chinese characters are works of art in the sense of the Copyright Law, they cannot prohibit others from legitimately using Chinese characters to express certain ideas and convey certain information.” [13]. It can be seen that the Supreme People's Court did not directly deny the copyrightability of individual characters in computer fonts in this case, but at the same time emphasized the practical functionality of individual characters, that is, no matter whether a single character constitutes a work of art, others can legitimately use the practical function of Chinese characters behavior should not be restricted.


The court of first instance in Fangzheng v. Procter & Gamble held that: “Because the structure and strokes cannot be changed, the style embodied by a single character has its limitations, so it is difficult for a single character to form a unique style that is different from other fonts. . . . The individual characters are confirmed to be original and enjoy the copyright of art works, and the basis is insufficient." [14], therefore, it is believed that the single characters "Gone with the Wind" and "Rou" involved in the case do not constitute works of art, and the court of second instance did not determine the legal attributes of the words in the font library , but affirmed that the product of the Chinese character font library is mainly a product with utility functions and supplemented by aesthetic functions, and then from the perspective of implied license (the purchaser's subsequent use of specific words displayed on the screen belongs to the purchaser's reasonable expectation use behavior) determined that Procter & Gamble did not constitute infringement[15]. After that, in the case of Hanyi Company v. Kunshan Xiaobaxi, the Nanjing Intermediate People's Court held that: "Each word in the Xiuying font library uses lines and structures designed by the designer, reflecting the designer's creative thinking. This process embodies the designer's wisdom and creative labor... The three Chinese characters "xiao", "ba" and "xi" involved in this case basically reflect the plaintiff's creation. The stroke characteristics of fonts...has obvious personality characteristics and can independently constitute a work of art. "[16]


Although the judgments of the above cases have different results on whether the words in the font library constitute works of art, judging from the specific expression of the content of the judgment, none of the trial courts directly and explicitly denied that the words in the font library can be used as the object of copyright protection (after all Article 5 of the "Copyright Law" excludes the objects that cannot be protected by copyright in an exhaustive manner, and fonts are not excluded from the objects protected by the Copyright Law.) Especially in recent years, court judgments have become more It tends to give protection to the words in the "Copyright Law".


As far as the theoretical circle is concerned, the biggest difference in whether a word in a font library can constitute a work of art lies in the determination of the originality elements. Of course, there are also considerations from the perspective of public interest balance. The main points of objection include that "the generation process of a single font is labor from the beginning to the end, and there is no act of creation [17]", "there is no overall creation in the design of the font library that goes beyond the design of the original shape of the Chinese character, so the individual characters of the font library are not Calligraphy works[18]", "Whether to provide copyright protection for individual characters in the font library will greatly affect the use of characters by the public [19]"; It embodies originality and belongs to the creative achievements of the designers' intellectual activities[20]", "protecting individual characters as works of art, and what is protected is not the meaning of the words conveying emotion and meaning[21]", etc.


To determine whether a single character in a font library is a work protected by the Copyright Law, it should focus on the elements of the composition of works/art works, especially It is the relevant provisions of the originality requirements for analysis and judgment. The author believes that as far as the creation process of fonts is concerned, from the design of the original font to the final formation of the font, it reflects the font designers' grasp of the font's aesthetics and the choice of design form. The formation of each font font is no longer a simple labor input, but integrates the designers' intellectual creation, experience and skills, etc., which reflects the subjective and personalized creative activities of the designers, and belongs to the designers. The creative achievements of intellectual activities. Therefore, the individual characters of fonts in the font library can meet the originality requirements of works stipulated in the Copyright Law. Judging from the font copyright infringement dispute cases in the past two or three years, the claim that a single character constitutes a work of art is protected by the copyright law has won the support of the court in most cases[22]), although the judgment of individual cases is not universally binding, But to a certain extent, it can reflect the court's general understanding of the originality of characters in the font library.


As far as the balance between the interests of the public and font design companies is concerned, copyright protection for individual characters in the font library will not constitute a monopoly on Chinese characters:

1. The copyright protection of individual characters protects original fonts/typefaces and does not cause damage to individual characters The monopoly of meaning, the practical function of Chinese characters to express emotion will basically not be affected.


2. Single-character fonts in the public domain (such as Song, Kai, Hei, Song Song, etc.) can basically meet the needs of general users, and users have complete choice in the choice of fonts. Readers are free to choose free fonts or paid fonts.


3. The "Copyright Law" clearly stipulates the fair use system. Individuals who use the fonts of the font library to express their daily expressions can consider obtaining infringement immunity through "for personal study, research or appreciation", and judicial practice Among them, there are almost no infringement cases caused by personal use of fonts in fonts.


Nevertheless, we cannot ignore that, unlike traditional art works, Chinese fonts not only have artistic functions for appreciation, but also have The more obvious instrumental functions, the high frequency of use and the wide range of use are incomparable to traditional art works. Therefore, while recognizing the attributes of single-character art works, attention should also be paid to the reasonable pricing of single-character license fees to achieve a win-win effect of positive interaction between font design companies and users.


[①]See (2003) Yi Zhong Min Chu Zi No. 04414 Judgment

[②]See (2005) Gao Min Zhong Zi No. 00443 Judgment

[③] See (2007) Gao Minchu Zi No. 1108 Judgment

[④] See (2010) Min San Zhong Zi No. 6 Judgment

[⑤] See (2010) Gao Min Zhong Zi No. 772 Judgment

[⑥] https://baike.so.com/doc/263424-278849.html Last accessed August 4, 2019

[⑦] See "Font Library Design "Iron Pestle Grinded into a Needle" Industry Urgently Needs Protection and Standardization" http://www.ce.cn/culture/whcyk/gundong/201108/17/t20110817_22626534.shtml Finally Access time August 4, 2019

[⑧]See (2005) Gao Min Zhong Zi No. 00443 Judgment

[⑨] See (2010) Min San Zhong Zi No. 6 Judgment

[⑩]See (2003) Yizhong Minchuzi No. 04414 Judgment

[11] See (2005) Gao Min Zhong Zi No. 00443 Judgment

[12] See (2010) Min San Zhong Zi No. 6 Judgment

[13] See (2010) Min San Zhong Zi No. 6 Judgment

[14] See (2008) Hai Min Chu Zi No. 27047 Judgment

[15] See (2011) Yizhong Minzhong Zi No. 5969 Judgment

[16] See (2011) Ning Zhi Min Chu Zi No. 60 Judgment

[17] See Liu Chuntian:On the Non-Artistic Quality of Founder's "Qianti Characters", "Intellectual Property" Issue 5, 2011

[18] See Li Chen:"False Evidence of Single Character Copyright in Computer Fonts", "Intellectual Property" Issue 5, 2011

[19] See Rui Songyan:"Copyright Protection of Single Characters in Computer Fonts——Comment on the Case of "Fangzheng v. Procter & Gamble", "Judicial Discussion", No. 10, 2011

[20] See Feng Gang: "Research on the Copyright Protection of Individual Characters in Chinese Fonts", "China Copyright" Issue 2, 2016

[21] Refer to Tao Xinliang and Zhang Ping:"Ingenious printed Chinese characters are artistic works protected by copyright law", "Law" 2011 No. 7 span>

[22] See:(2015) Suyue Fa Zhi Min Chu Zi No. 553, (2015) Ning Tie Zhi Min Chu Zi No. 00766, (2016) Shanghai 0110 Judgments of Minchu No. 9621, (2018) Xiang 01 Minchu No. 523, and (2018) Ji Minzhong No. 655.


Specially planned last tweet:

Xiong Wencong: Analysis of Legal Issues Related to Font Copyright

Yuan Bo| Are you ready?




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