Font or Font Software

Artem, 

This is an excellent question. I've found it pitiful that most font vendors worldwide, including those from Europe or South America, have blindly drafted their EULAs purely around the limitations of U.S. copyright law. It's ridiculous that they seem to have completely abandoned the potential protection of their own domestic legal systems, and by doing so they have weakened the value of their intellectual property. 

Why weakened? Because many countries don't have any specific exclusion of typeface protection as visual works, like the U.S. has. If a legal case emerges in some country, judges will most likely want to consult with experts in the field, and the experts will possibly look at what the consensus is in the creative community itself. 

It looks like the typeface vendors have silently and passively accepted the "reality" that typeface designs aren't subject to copyright protection as visual works. Well, they may mention that this is only "in U.S. copyright" in some informal discussions — but this is not reflected in the legal reality they *project*. 

And yes, that *projection* of legal values by a given community is what matters. Courts of law in the UK, France, Poland, Argentina or Thailand don't have magical knowledge of a variety of specific topics. When it comes to deciding what the manifestation of individuality, creativity and originality is in a given segment of the creative industry, courts will look at what position the authors themselves represent. 

Typeface authors have for some reason, as a whole, abandoned ship.

I haven't heard the phrase "typeface author" in a long time, there is very little mention of authorship.

The EULAs practically never underline the claim (or ambition) that the digital fonts, while *also* claiming to be software programs (especially for the purpose of jurisdictions where that scheme is the only available protection scheme), also claim that they are copyrightable visual works. 

So right now, if a judge sampled various EULAs from various foundries worldwide, that judge would most certainly be under the impression that the typeface authors themselves don't think their creations are copyrightable visual works — because they only talk about "font software". 

"If the majority of these people doesn't want copyright protection, well, I won't be the one who'll try to change their minds," the judge would say. 

This is pitiful for another reason: if a user accepts a EULA, the user accepts (at least to some extent) a certain legal reality that the EULA defines. If my EULA said my typeface is a work of art, then even if the general copyright (in the U.S.) does not agree, those who accepted the EULA would still be bound by such commitment.

Just like the font EULA can prohibit you from doing various things that the general copyright permits, it could include phrases like acknowledgement that the font software is digital expression of a typeface which in itself is a visual work that is protected under copyright in many jurisdictions. 

This would have the effect that those who agreed to the EULA might be in breach if they imitate the design, but it would also have educational effects, lobbying effects, and would actually strengthen protectio in many countries.

But the majority of typeface authors seems not to see enough value in their rights so they would do something about it. They seem to passively acknowledge that whatever some person in the U.S. Copyright Office "ruled" some 40+ years ago (!) is true forever and valid globally. 

I mean even when German foundries sell to German users, they use this American "font software only" template. Actually, in Germany the situation is slightly differrent because of the country's 1981 special law dedicated to typeface protection. But there are tons on protection schemes not available under U.S. law but available under EU law which European font makers seem to have been happily ignoring. The 1996 EU database directive, anyone? 

The thing is — if type designers as authors send out such a strong signal that they themselves don't care much about the legal protection of their own work, why should others (users, courts) care? 

So, thank you, Artem, for raising this issue. You should be using triple protection: typeface as visual work, font as database and font as software program. In case the software program scheme fails (and you're right to recognize that it's whacky), you still have the database scheme.