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Jacqueline D. Lipton

Professor of Law, Co-Director, Center for Law, Technology, and the Arts, Associate Director, Frederick K Cox International Law Center, Director, Cyberspace Law and Policy Office, Case Western Reserve University School of Law, Cleveland, OH. She wrote an authoritative article on digital typeface protection entitled To Copyright or Not to Copyright? Copyright and Innovation in the Digital Typeface Industry (2009). Abstract: Intellectual property rights are often justified by utilitarian theory. However, recent scholarship suggests that creativity thrives in some industries in the absence of intellectual property protection. These industries might be called IP's negative spaces. One such industry that has received little scholarly attention is the typeface industry. This industry has recently digitized. Its adoption of digital processes has altered its market structure in ways that necessitate reconsideration of its IP negative status, with particular emphasis on copyright. This article considers the historical denial of copyright protection for typefaces in the United States, and examines arguments both for and against extending copyright protection to digital typefaces. It compares copyright law with alternative methods of protection for digital typefaces. It also suggests that the digital typeface industry may be a useful lens through which to consider broader claims about the application of intellectual property law to IP's negative spaces in the digital age. The article is meant for the US market, and, while really well-researched, it is a bit vague in its recommendations---it does not take any strong position. It is cautious (most lawyers are), and seems to want more typeface design protection laws (most lawyers do). In her conclusions, Lipton states Because copyright protection can potentially chill innovation, it is necessary to consider relevant market factors in more detail before making a determination about the need to extend copyright to digital typeface designs as such, or to their code. If such an extension is to be made, copyrights granted for digital typefaces should only be thin. Copyrights should also only be available prospectively and not retroactively. This should mitigate concerns about propertization of the public domain.

PDF file of Lipton's 2009 article at the University of Califnia Davis. Local link.

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