Intellectual Property Law
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AbstractClassic economic theory predicts that without copyright protection authors and publishers would not have sufficient incentive to invest the time or money needed to produce or distribute new works, and the public would suffer a shortage. Copyrights are an attempt to solve this problem. By granting a monopoly to the author of an expressive work the government gives him the sole right to copy it. If only the author has this right, authors will get a reasonable rate of return, and thus a sufficient incentive to create new works. However, empirical evidence on whether adequate expressive works would be created without copyright protection is hard to come by. This is a little disturbing. Copyrights, being monopolies, come with significant economic and social costs. Too-broad copyright protection often works, paradoxically, to stifle innovation. Where is the evidence going to come from? Almost everything that could be copyrightable subject matter has been made to be. However, there are some industries that do not receive strong intellectual property protection yet manage to be innovative, generating many new expressive works. Not very many industries operating in intellectual property law’s open areas have been written about despite the seeming importance of identifying and cataloging them. This paper adds to that list by analyzing the mechanisms that allow typeface designs to proliferate despite being unprotected by copyright. These mechanisms include technological forces, industry norms, fashion-like cycles, and the practice of bundling computer fonts with software. Technology compels innovation when new designs are made to compensate for the limitations of newly introduced technology. At the same time, the digitization of type design has made typefaces easier and cheaper to produce while allowing features, not previously feasible, the market comes to demand. Norms within the type design industry are effective at mitigating plagiarism within it. Even when norms fail, typefaces, especially those that require the most time and investment to design, are resistant to plagiarism. Furthermore, while typefaces as computer fonts are subject to file-sharing, more damaging to prices is the practice of designing and bundling computer fonts with operating systems and other software to enhance their appeal. Typefaces are also subject to the vagaries of artistic movements and fashion-like cycles. As tastes change, which they do rather quickly, new typefaces have to be made to comport with the new aesthetic. Advertising and the advertising industry is an important cog in this process, helping to speed the fashion-cycle. Together, these mechanisms work to yield a large number of typeface designs. This challenges, at least in some instances, the orthodox justification for granting copyrights.