Concern about Originality

Another concern relating to copyrights over fonts is whether new fonts can actually be regarded as original works for claiming protection under copyright laws. This concern stems from the fact that fonts (or rather typefaces) are merely altered manner of representation of the alphabets and symbols that have already existed as part of the concerned language. I believe that this concern is misguided and new fonts clearly satisfy the criterion of originality. As seen from the case of Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber[1], the test for originality in India is the “sweat of the brow” test. For a work to be original, it should involve a certain degree of work and effort from the author and should be clearly attributable to the author as against anyone else. These requirements are clearly fulfilled in the case of new fonts as the creation of the font by the author clearly shows considerable effort on his part, right from the processes of designing typefaces to the development of a code that leads to the running of the program on the computer. The new font is also clearly attributable to the applicant as there is no other person who can be associated with this particular way of expression of the alphabets and symbols. Therefore, the work of the applicant squarely meets the established criterions for determining originality.

A Way Forward and Conclusion

As we understand now, fonts undoubtedly satisfy the requirements for getting protection, both for the code and for the typefaces. However, following the view taken in Aananda Expanded v. Unknown[2], there has been a general practice of not granting copyrights for non-conventional works such as typefaces in India. Even though the phrase “other work of artistic craftsmanship” is included under the definition of “artistic work” in the Act[3], the Registrar as well as the courts have been reluctant in recognising non-conventional work as arctic work under this phrase (as witnessed in Aananda Expanded v. Unknown)[4]. While some have suggested amendments to the Act to solve this problem, I’m of the opinion that rather than an amendment to the Act, it would be more beneficial if a series of precedent is set by the Courts liberalizing the application of “other work of artistic craftsmanship” and giving a wider scope to the definition of “artistic work”. In my opinion, it would be impossible to include specific provision for all the non-conventional works under the Act and including a few of them would prove to be counterproductive as it is usually seen that specific inclusion of some leads towards the exclusion of all the rest. All the necessary provisions exist in the current law itself, what is needed is a proper interpretation by the Courts.

BY

TANVEER MALNAS

B.A.L.L.B – 4th Year

ILS LAW COLLEGE, Pune

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[1] 1995 PTC (15) 278

[2] Supra Note 2

[3] Section 2(c), The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India)

[4] Supra Note 2