Legal protection of characters

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Fonts

The legal protection of typographical designs concerns the following aspects:

It is not easy to tell these aspects apart. The legal problems become clearer when the aspects are formulated in question form:

  • Can a certain font be used to set or design a text to be published?
  • Can an existing typographical design be used for publication purposes (e.g. as a reprint )?
  • Can a handwritten font or designed page be used by others?

In specific applications, a distinction must always be made between protecting the font from protecting the typeface created with it and protecting the text displayed with it.

Typographic fonts

Appearance of a font

In Germany, the protection of characters is subject to design protection . Copyright protection of fonts can only be mentioned in exceptional cases . The Federal Court of Justice stated:

“Fonts intended for normal use (so - called bread fonts ) can also enjoy art protection. Decisive for the assessment of whether a utility font is a work of art, however, is not the particular aesthetic subtleties of the font, which only a trained typist is able to detect, but the aesthetic impression that the font makes when comparing its overall appearance with previously known fonts conveyed to laypeople who are familiar with art and are receptive to calls from art. "

- BGH, judgment of May 30, 1958

As a result, however, he denied that characters could be protected by copyright in all decided cases.

In the case of utility or bread- and - butter fonts, protection under the Copyright Act , which runs 70 years after the death of the font designer (see standard protection period ), is practically eliminated. Even with the so-called decorative fonts , it is only given in exceptional cases.

The law of Switzerland , the country of origin of the scale-setting Swiss typography (see Frutiger , for example ), also denies text fonts copyright protection.

If one were to recognize copyright protection for typographical fonts, one would have the legal-dogmatic problem that, according to the wording of the copyright laws, the font protection refers to any reproduction of the protected letters, i.e. also to the reproduction of texts set with them, which is clearly not intended. One would have to accept an unwritten barrier of copyright or see everyone who copies a relevant book page as a licensee.

With the law on the Vienna Agreement of June 12, 1973 on the protection of typographical characters and their international deposit (Characters Act) of July 6, 1981 (Federal Law Gazette II p. 382), the Federal Republic of Germany implemented this, including the implementation regulations. This stipulates that the term of protection is initially 10 years and can be extended to a maximum of 25 years.

The Vienna Agreement, which came about through massive lobbying by the Association Typographique Internationale (ATypI), bears the English title Vienna Agreement for the Protection of Type Faces and their International Deposit . The host country Austria was not one of the 10 first signatory states, but Switzerland did. Liechtenstein was added a little later. The agreement has not yet entered into force as only two countries (Germany and France ) have ratified it.

The United States and most other countries do not have similar laws. However, lobby groups are working to protect fonts as much as possible by law. Systematic plagiarism (copying of fonts) in particular is a thorn in the side of the companies that license fonts . In a sensational proceeding, a joint design of the Segoe UI registered by Microsoft was declared null and void in 2006 . The font is based closely on the Frutiger .

According to the official justification for the Characters Act, the rights holder's right to prohibit should in principle not extend to the distribution of the texts; this should prevent excessive impairment of sales in the book trade. Meanwhile, however, which entered into force by 1 June 2004 has Design Act replaced the previously applicable Design Act and the corresponding provisions in the character law so that it can be viewed from the beginning controversial view as outdated; See also “My rights as an author” by Gernot Schulze, Beck legal advisor in dtv, 5th edition, 2004: “The owner of the design on the characters can therefore oppose the distribution of books and other printed products that are printed in the protected font , as well as to intervene against other uses of the font ".

Fonts as computer programs?

The question of whether a font is a computer program is controversial under German law. It is of particular interest in terms of copyright law because the protection requirements for computer programs are very low and no qualitative or aesthetic criteria may be used from the outset ( Section 69a (3) sentence 2 UrhG). In this respect, classification as a computer program could also help those fonts that only implement so-called bread fonts to obtain copyright protection. Under no circumstances could the computer program protection act against the exploitation of the printed characters.

In fact, in 2000 the Cologne Regional Court took the general view that fonts should be classified as computer programs. In contrast, the copyrighted literature predominantly rejects computer program protection because computer fonts are basically graphic data and not computer programs. Jaeger / Koglin only want to grant protection for fonts that contain individually inserted hints - control commands embedded in the font to improve the screen display in small display sizes. This is also represented for Switzerland. In practice, the hinting is often not created individually, but rather automatically and only post-processed manually. On the other hand, with current fonts in OpenType format, complex typographic features can be programmed in the font, which should make the program properties of fonts more likely today.

Font example from Helvetica

Trademark protection

If the name of the font is protected as a brand , its distribution can only be prevented under this name, provided that there is no protection under the Character Act. For example, the Helvetica was designed in 1957 and launched on the market in 1961. Helvetica is a brand of the Linotype company , the corresponding fonts from CorelDraw can therefore not bear this name, but are called Swiss or Switzerland .

Regardless of the product design discussed forming legal problems can be assumed that the picture of any text that is set in a protected font that does not fall under the prohibition law of the owner. The legal protection relates to the use of the font (offer for download, creation of the text set, etc.), not to the use of texts created with this font.

It is not clear how it behaves when the font samples of protected fonts are presented. As a rule, it should be unproblematic, at least for a non-commercial purpose.

Free fonts

Linux libertine

With the advent of open source , there was also a need for free fonts (see open source font ) such as Linux Libertine .

The Nimbus Roman No9 L from URW Type Foundry is the free PostScript version of the Times Roman .

Anyone wishing to release a newly developed typeface in Germany must expressly grant a patent license, as the typeface enjoys automatic, free, non-registration protection throughout Europe for a period of three years thanks to the community design .

Typographically set texts

Most EU countries do not have their own protection for the typographical design of a text. Unless other legal provisions intervene, a (public domain) text that is printed in a book can be reprinted as a facsimile or published on the Internet . Opposing imprint notes are mostly to be assessed as copy fraud .

In some countries - above all in the United Kingdom  - there is protection for typographical design in favor of the publisher, which is intended to prevent reprints of public domain fonts from being made in facsimile form. Reprinting of works protected by copyright can in any case be countered by means of copyright law.

The British protection of the Typographical arrangement of published editions lasts 25 years from the end of the calendar year in which the work was first published. This also applies in Australia , New Zealand , Jamaica and Hong Kong , while in Ireland and South Africa the protection period is even 50 years. As a former world power , the United Kingdom was able to export this specific regulation to a number of other countries.

However, this type of protection for the typographical design of a work is also known outside the Commonwealth . B. in Indonesia , where the term of protection is also 50 years since the edition was published.

A publisher who wishes to invoke this protection must file a lawsuit in one of the countries that grant this protection. Other EU countries are not obliged to respect these national characteristics of the United Kingdom and Ireland.

In Germany, the competition law assessment of the reprint of a work in the public domain that is offered as a reprint by a publisher itself depends on the circumstances of the individual case (BGH decision “Reprint”). The payback period also plays a role here. The longer a provider has had time to recoup its expenses, the less competition law can prevent competitors from taking over. The Reprint decision concerned a work published in 1890/1902 that had become public domain in 1962 and had been out of print for 12 years when the reprint appeared in 1963. The coveted protection was rejected.

In accordance with the principle of freedom from imitation , the direct takeover of services given with the adoption of the foreign rate can only be viewed as unfair in exceptional cases. Public domain literature must be allowed to be freely distributed after the protection period has expired. The typographical effort of the publisher in Germany does not constitute an obstacle for non-commercial, free projects such as Wikisource to publish scans of modern editions on the Internet. The prerequisite is, of course, that the expenditure does not enjoy any protection under Sections 70 (scientific editions), 71 ( editio princeps ) UrhG.

Note engravings

According to German law, there is generally no copyright protection - which was occasionally suggested in the past - for sheet music as works of applied art (commercial graphics). The Federal Court of Justice also did not assume that the music notation would be protected by copyright in its decision in 1986 .

As a result, the copying of sheet music from unedited works in the public domain does not violate copyright law. (Whether a publisher - irrespective of this - can take action against a competitor under competition law protection against imitation, if he photocopies public domain notation from his offer and puts it on the market, has been discussed in the past in jurisprudence and literature, but is questionable given today's legal situation .) The worldwide movement that wants to digitize sheet music in the public domain , so that free access to the commercial offers of music publishers is possible, runs under the label " Free Sheet Music ".

Handwritten fonts and designs

Lettering "Loriot"
Heading of a calligraphic document, hobby artist

The protection of handwritten fonts and designs has so far only been sporadically clarified in the case law.

In general, it cannot be assumed that, for example, autographs or autographs represent personal intellectual creations within the meaning of the copyright law. In a decision from 2016, the Austrian Supreme Court (OGH) held that a person's handwriting “usually” does not have the character of a work. Because the handwriting is undoubtedly individual; However, its uniqueness does not result from the expression of artistic design, but from years of grinding down the learned Latin script in the tiniest nuances. It is therefore not a “product of individual creativity”, but rather draws its uniqueness “solely from the statistical improbability that another person uses exactly the same script”. The Berlin Regional Court denied that the personal lettering of the artist Vico von Bülow, who is known under the artist name Loriot (picture opposite), would be protected as a work of art, as it lacks the required peculiarity. “Just the angular and inclined spelling using block letters” does not justify a sufficient level of creation of the signature, since these circumstances “are not suitable to distinguish the lettering from the purely craft-like and everyday”. If a normal handwritten text is not protected by copyright as text, its publication cannot be prevented by relying on the copyright protection of the font design.

Protection according to other standards, however, can certainly be considered. For example, signatures are sometimes registered as image marks . In the case law it has also been discussed whether the depiction of a personal lettering from the general right of personality ( Art. 2, Paragraph 1 in conjunction with Art. 1, Paragraph 1 of the Basic Law ) can be averted; In the event of a dispute, the Berlin Regional Court denied a violation because the use of an online lexicon was in the area of ​​freedom of information, science and art protected by Art. 5 of the Basic Law.

In contrast to "normal" manuscripts, calligraphic designs can be considered, for example, which under German law may be protected as a work of applied or fine arts according to Section 2 (1) No. 4 UrhG. According to the case law of the Federal Court of Justice, the decisive factor for copyright protection is whether the representation has such an aesthetic content that, in the opinion of those groups who are receptive to art and reasonably familiar with art views, justify speaking of an “artistic” achievement. The aesthetic effect can only justify protection if and to the extent that it is not due to the intended use. When using traditional fonts ( Western calligraphy ) it must be remembered that such traditional forms are usually in the public domain due to their age ; not infrequently, its mere “adaptation to the present” will not be enough creative contribution for an independent protection.

Figure alphabet from the master ES , letters, n, o, p (15th century)

Especially in artistic calligraphy, which has no purpose and which is designed to stand out more or less from the familiar, there will be regular copyright protection with appropriately designed writing sheets. Of course, this does not mean that, for example, the shape of a single letter cannot be adopted. This is because the protection of the face often results largely from the overall graphic impression; However, the adoption of a single mark only encroaches on someone else's copyright if the borrowed part itself - viewed in isolation - enjoys protection. In fact, especially in the case of particularly unusual letters (e.g. decorative initials), copyright protection is possible. If the late medieval master E. S. had not been dead for 70 years, his figure alphabet would have to be regarded as a protected work of the visual arts within the meaning of Section 2, Paragraph 1, No. 4 of the Copyright Act.

literature

  • Robert Dittrich: Copyright protection of characters: Investigated on the basis of the use of the font “Ronda Roman” for the inscription on the packaging of toilet paper . In: Austrian papers for industrial property rights and copyright . tape 59 , no. 5 , 2010, p. 204-209 . [Austria]
  • Markus Gaderer: Protection of fonts . In: ecolex . tape 21 , no. 2 , 2010, p. 168-171 . [Austria]
  • Ekkehard Gerstenberg: Typeface and copyright . In: Fritz Hodeige (ed.): The right to intellectual property: Studies on copyright, publishing and press law: A commemorative publication for Walter Bappert . Rombach, Freiburg im Breisgau 1964, p. 53-68 . [Germany]
  • Peter Hanser-Strecker: On the question of the copyright protection of the music image . In: Archive for Copyright, Film, Radio and Theater Law (UFITA) . tape 93 , 1982, pp. 13-23 . [Germany]
  • Till Jaeger, Olaf Koglin: The legal protection of fonts . In: Computer and Law . tape 18 , 2002, p. 169-174 . [Germany]
  • Günter Kelbel: The protection of typographic characters . In: Commercial legal protection and copyright . tape 84 , no. 2 , 1982, p. 79-84 . [Germany]
  • Jonathan L. Mezrich: Extension of Copyright to Fonts — Can the Alphabet Be Far Behind? In: Computer Law Review and Technology Journal . No. 3 , 1998, p. 61–68 (digitized via HeinOnline , not freely accessible). [UNITED STATES]
  • Mischa Charles Senn: Rights to «Fonts» . In: Journal for Intellectual Property, Information and Competition Law (sic!) . tape 7 , no. 3 , 2003, p. 191-203 . [Switzerland]
  • Beatrice Wagner: On the protection of the design of consumer goods and typographic characters: A comparison of the legal situation in the United States and the Federal Republic of Germany, taking into account the Vienna Convention on the Protection of Typographical Characters . In: Competition in Law and Practice . tape 26 , no. 9 , 1980, pp. 659-666 . [Germany, USA]
  • Justin Watts, Fred Blakemore: Protection of software fonts in UK law . In: European Intellectual Property Review . tape 17 , no. 3 , 1995, p. 133-137 . [Great Britain]

Web links

Individual evidence

  1. ↑ Az. I ZR 21/57, BGHZ 27, 351 (Candida script). Schricker: Copyright . 3. Edition. 2006, § 2 No. 170
  2. ^ Schricker: Copyright . 3. Edition. 2006, § 2 No. 170
  3. ↑ Blank 1999 (see web links), p. 29
  4. ↑ text
  5. ↑ See the illustration in Blank 1999, p. 66 ff.
  6. ↑ See the notes at tjc.com
  7. ↑ Example: typeright.org (English)
  8. ↑ BT-Drs. 9/65. (PDF) p. 7. Jaeger / Koeglin: ifross.de ( Memento of July 14, 2007 in the Internet Archive ) (PDF) p. 171 note 26; see also Kelbel: The protection of typographic characters . 1984, chap. 5 marginal no. 27 ff.
  9. ↑ cf. BT-Drs. 15/1075, http://dipbt.bundestag.de/dip21/btd/15/010/1501075.pdf
  10. ↑ Jaeger / Koglin, The legal protection of Fonts , 2002, op. Cit., P. 172; see more generally also Czychowski in Fromm / Nordemann, Copyright , 12th ed. 2018, § 69a marginal no. 14, 16.
  11. ↑ Loewenheim / Spindler in Schricker / Loewenheim, Copyright , 5th edition 2017, § 69a Rn. 12 (fonts only the result of the respective commands).
  12. ↑ LG Cologne, judgment of January 12, 2000, 28 O 133/97 = ZUM 2000, 1099, 1100 f.
  13. ↑ In this sense, for example, Grützmacher in Wandtke / Bullinger, Praxkiskommentar Copyright , 4th edition 2014, § 69a Rn. 15; Haberstumpf in Mestmäcker / Schulze, copyright , status: 55th AL 2011, § 69a Rn. 12 (“undoubtedly” not recorded).
  14. ↑ Jaeger / Koglin, The legal protection of Fonts , 2002, op.cit., P. 172.
  15. ↑ Senn , rechte an «Schriften» , 2003, op. Cit., P. 197.
  16. ↑ Jaeger / Koglin, The legal protection of Fonts , 2002, op.cit., P. 172.
  17. ↑ See also ifross.de ( Memento from August 3, 2007 in the Internet Archive )
  18. ^ Copyright, Designs and Patents Act 1988 (c. 48) , pp. 1 (1) (c), 15; on this House of Lords , Newspaper Licensing Agency Limited v. Marks and Spencer Plc, July 12, 2001, [2001] UKHL 38 ( Memento November 20, 2015 in the Internet Archive )
  19. ^ Copyright Act 1968 (No. 63) , ss. 88, 96: Published editions of works; to Federal Court of Australia , Nationwide News Pty Ltd v Copyright Agency Ltd, April 18, 1996, [1996] FCA 1395 ; Archive link ( Memento from February 3, 2007 in the Internet Archive )
  20. ↑ Copyright Act 1994 (No. 143) , ss. 14 (1) (f), 25: Typographical arrangements of published editions; Ministry of Business, Innovation & Employment : Copyright protection in New Zealand
  21. ↑ Jamaica Intellectual Property Office: About Copyright ( Memento from August 2, 2016 in the Internet Archive )
  22. ↑ legislation.gov.hk
  23. ↑ Copyright and Related Rights Act, 2000 (No. 28) ( Memento of January 19, 2012 in the Internet Archive ), ss. 17 (2) (c), 29: Typographical arrangement of published editions
  24. ↑ Copyright Act No. 98 of 1978 ( Memento of December 30, 2008 in the Internet Archive ) (PDF; 226 kB), ss. 2 (1) (h), 3 (2) (f): Published editions; Smit & VanWyk: Copyright in South Africa
  25. ↑ Undang-Undang no. 19th. 2002 tentang Hak Cipta (PDF) = Law no. 19 of 2002 regarding Copyright ( Memento of April 9, 2016 in the Internet Archive ) (PDF) Art. 12 (1) a, 30 (2)
  26. ↑ I ZR 52/66 , BGHZ 51, 41
  27. ↑ Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 198; Andreas Mayser, The privilege of music publishers through special regulations for sheet music in copyright law , Nomos, Baden-Baden 2012, ISBN 978-3-8329-6626-3 , p. 32 f .; Rolf Sack, Copying sheet music from works of music in the public domain under German copyright and competition law , in: François Dessemontet (Ed.), Mélanges Joseph Voyame , Diffusion Payot, Lausanne 1989, pp. 225–239, here pp. 225 f .; Heinz Stroh, The legal protection of sheet music against unauthorized reproduction , Berlin Verlag, Berlin 1995, ISBN 3-87061-451-X , p. 62 f. But Hanser-Strecker, On the question of the copyright protection of the music notation , 1982, op.cit., P. 15 ff. (With reference to the numerous design decisions of the music artist, such as the attachment of the clefs, time indications and bar lines, which all together Compared to text graphics, leave several times greater leeway, which is "in most cases [...] fully used").
  28. ↑ judgment of February 6, 1986, I ZR 98/84 = GRUR 1986, 895. See Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 198.
  29. ↑ Restricting in particular: § 70 UrhG ( scientific editions ), § 71 UrhG ( postponed works ). On the latter illustrative BGH, ruling. January 22nd, 2009, I ZR 19/07 = GRUR 2009, 942 - Motezuma for a “lost” opera.
  30. ↑ Considered for example in BGH, ruling v. February 6, 1986, I ZR 98/84 = GRUR 1986, 895, 896 - note engravings based on § 1 UWG old version (unfairness in the event of a dispute fails because the publisher has had the opportunity to amortize for 50 years). In the meantime, there are systematic objections to such protection - today from the general clause of Section 3 (1) UWG. See Köhler in Köhler / Bornkamm / Feddersen, UWG , 36th edition 2018, § 3 marginal no. 2.28; Sosnitza in Ohly / Sosnitza, UWG , 7th edition 2016, § 3 marginal no. 54; advocating: Rolf Sack, performance protection according to § 3 UWG , in: Commercial legal protection and copyright , vol. 118, no. 8, 2016, pp. 782–789, here p. 787.
  31. ^ Albrecht G. von Olenhusen, author vs. Owner et vice versa ?: On the issue of copyright access rights , in: Winfried Bullinger (ed.), Festschrift for Artur-Axel Wandtke on his 70th birthday on March 26, 2013 , De Gruyter, Berlin 2013, ISBN 978-3-11- 028351-8 , pp. 279-286, here p. 283.
  32. ↑ OGH February 23, 2016, 4 Ob 142 / 3pm = MR 2016, 140 (with note Walter), 143 - Bettis Hand .
  33. ↑ LG Berlin, judgment of March 27, 2012, 15 O 377/11 (juris, para. 92).
  34. ↑ LG Berlin, judgment of March 27, 2012, 15 O 377/11 (juris, para. 87 ff.).
  35. ↑ Dreyer in Dreyer / Kotthoff / Meckel, hand commentary on copyright , 3rd edition 2013, § 2 Rn. 227; Albrecht G. von Olenhusen, author vs. Owner et vice versa ?: On the issue of copyright access rights , in: Winfried Bullinger (ed.), Festschrift for Artur-Axel Wandtke on his 70th birthday on March 26, 2013 , De Gruyter, Berlin 2013, ISBN 978-3-11- 028351-8 , pp. 279–286, here p. 283. For the calligraphic elements of a music image: Peter Hanser-Strecker, The Many Faces of Music: For the Graphic Protection of Works of Music , in: Jürgen Becker, Peter Lerche and Ernst -Joachim Mestmäcker (ed.), Wanderer between music, politics and law: Festschrift for Reinhold Kreile on his 65th birthday , Nomos, Baden-Baden 1994, ISBN 3-7890-3481-9 , pp. 269-279, here p 270.
  36. ↑ BGH, ruling v. November 13, 2013, I ZR 143/12 = BGHZ 199, 52, 58 - birthday train , Rn. 15th
  37. ↑ BGH, ruling v. November 13, 2013, I ZR 143/12 = BGHZ 199, 52, 68 - birthday train , Rn. 41; Ruling v. May 12, 2011, I ZR 53/10 = GRUR 2012, 58 - Rope Circus , Rn. 25th
  38. ↑ Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 87.
This version was added to the list of articles worth reading on January 23, 2007 .