Intellectual Property Protection of Chinese Character Input Software and Chinese Character Library under Chinese Law
Chinese characters are a kind of hieroglyphs, with a unique modeling beauty. The hand-written Chinese characters are digitized through recognition technology, making a perfect fusion of ancient Chinese characters and modern technology. Furthermore, modern software technology has greatly enriched the shape of Chinese characters, combining the unique modeling art of Chinese characters with the logic of computer code. Such software is called font software. How should such design of fonts be protected by intellectual property law, and what are the special features of intellectual property protection for font software?
In a copyright infringement case that a prestigious Chinese software corporation represented by Beijing Wis & Weals Law Firm against its competitor in Taiwan regarding Chinese character handwriting recognition software, the dispute between the two parties focused on the above-mentioned subject matter of copyright protection. Based on this typical case, we discuss the copyright and other kind of intellectual property protection for font software.
I. Analysis over subject matters of copyright protection for font library software
In this typical case, the defendants were finally determined to have infringed upon the plaintiff’s copyright in and to recognition dictionary of Hanon Software. Recognition dictionary is virtually Chinese character font library information, which achieves Chinese character recognition via program call.
The design and production of font-based software usually goes through processes as font selection or design, scan input, digital fitting, word-fixing, quality inspection, and integration into a font library. In combination with the production process of font library, there are three categories of subject matters that may be protected by the Copyright Law: firstly, selected or designed single character font; secondly, the font library glyph formed as a whole after scanning input; thirdly, font library program called at the time of, and formed subsequent to, digital fitting. We hereby analyze whether such three categories of subject matters should be protected by the Copyright Law in combination with specific cases.
1. It is inappropriate to determine the single character glyph selected or designed as works
The single character glyph of font library in dispute under this typical case was confirmed through screening original handwritten Chinese character samples, and the glyph of each Chinese character so screened reflected the screening preference of software designer. The design and production of most other font library software usually start with single character glyph design. Therefore, we should first examine whether the single character glyph design in the font library software expressed via digitalization can be determined as works.
As to the matter concerning whether single character glyph can be determined as works, the conclusions vary from court to court. In PKU Founder v. Shandong Weifang Wenxing case, Beijing No. 1 Intermediate People’s Court affirmed that single font should be protected by the Copyright Law, upholding that “the typefaces contained in the font library were digital representations of the characters independently created by Founder, and were graphic artistic works composed of lines which are of aesthetic significance,……The copyright in and to the typefaces of each character contained in the font library and font library software composed of data coordinates and command programs for such characters shall vest in Founder.” In PKU Founder v. Blizzard Entertainment and Shanghai The9 case, the Supreme People’s Court held that “each font (font library) is composed of the said commands and relevant data and is not a graphic or three-dimensional artistic work of aesthetic significance composed of lines, colors, or others, which should not constitute the work of the fine arts as defined in the Copyright Law.”
We agree upon the opinions of the Supreme People’s Court. On one hand, we consider that, in the said two cases involving PKU Founder, the single character glyph of font library software focuses on the pursuit for practicality of fonts and strives to be close to those traditional fonts that have entered the public domain. The protection of copyright in and to single character glyph may result in unclear boundaries of copyright protection, thereby causing the inability of others to foresee the protection scope of copyright, which is not conductive to the formation of stable market order.
2. The expression part of font library program should be determined as works.
The font library software can also reflect the originality of the designer in the digital fitting stage. After the designer confirms and scans the glyph into a digital figure, the glyph will be digitally fitted by means of font library tool software, that is, to select a positioning point on a glyph figure and outline the glyph in a manner that renders the outlined glyph similar to the sample glyph as much as possible, and then generate a digitized glyph at the designer’s option. In this sense, glyph data is equivalent to a piece of “program code” generated by a computer under artificial intervention and should be protected by the Copyright Law.
In this typical case, the recognition program identified a detailed process for and implementation method of Chinese character handwriting recognition as well as various feature definitions and functions, which are expressed in the form of computer code. Therefore, the recognition program per se as source code or target code constitutes an expression. The digital fitting process reflects the originality of programming design by software designers according to the characteristics of single character glyph of font library software or glyphs of font library with unified features. Even for the glyphs from the same font library, different software designers can produce completely different code based on different programming ideas and techniques. Thus, if font library programs are compiled separately for two independent subject matters with originality, such font library programs should be determined as works.
II. Comprehensive Protection of Intellectual Property Rights of Technical Solution of Chinese Character Handwriting Input Software
From the perspective of technology, the core technology of Chinese character handwriting input software is seeking for a method to extract handwritten Chinese character features and implementing such extraction, which is also the core competency of such software manufacturers’ products.
Therefore, the protection of such core technical innovation is vital to the protection of intellectual property rights of such enterprises.
For the purpose of this typical case, a large sum of similar key features are found in Hanvon Software and FineArt Software programs and regular correspondence is found in terms of recognition dictionary based on court judgment. It should be inferred that the defendant has used the plaintiff’s core technology.
However, because the plaintiff only lodged a copyright infringement lawsuit and different languages were used by the plaintiff’s and the defendant’s software, the key features of programs contained in the plaintiff’s and the defendant’s software involved in technical solution and were beyond the protection of the Copyright Law of the PRC, the claim of Hanvon alleging an infringement upon its copyright in and to recognition program of Hanvon Software should not be supported.
In this regard, we hold that it is obviously ineffective to protect such innovative software merely via copyright protection and it is easy to circumvent such protection by rewriting computer code. Therefore, we should explore a more comprehensive solution for the protection of intellectual property rights.
1. To apply for patent by combining with input/output hardware to truly protect technical innovation
According to the provisions of Section 2 of Chapter IX of Part II of the Guidelines for Patent Examination (Version 2010), as to invention patent applications relating to computer programs, if a claim merely relates to computer programs per se, it falls into the scope of the rules and methods for mental activities and does not constitute the subject matter for which patent protection may be sought. However, if all the contents of a claim include not only rules and methods for mental activities but also technical features, then the claim as a whole is not rules and methods for mental activities, and shall not be excluded from patentability in accordance with Article 25 of the Patent Law.
As to Chinese character handwriting input software, patent protection may be sought by combining the software and hardware to generate technical features.
In this typical case, a patent may be sought if the recognition method of recognition program is combined with hardware related to handwriting recognition to produce a subject matter for which a patent may be granted.
The core points of such technical innovation may be truly subject to protection via patent protection and the person accused of infringement would be unable to avoid its legal liabilities for such infringement through simple code transformation.
2. To restrict reverse engineering via encryption technology
As to a technical solution of a computer program for which no patent is sought by combining with the hardware, if a competitor acquires and reproduces source code thereof via reverse engineering and then rewrites the same as per technical features of source code so as to obtain this technical solution, such act of this competitor shall not constitute an infringement. However, since the reproduction of source code is inevitably involved during acquisition of source code in reverse engineering, the reproduction of source code by the competitors may be restricted by technical means, thereby restricting reverse engineering.
There are two main technical means that can be adopted, that is, writing chaotic code and encryption technology, both of which aim at increasing the cost of, and the difficulty in, software reproduction.