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{{Use American English|date = March 2019}}
⚫
The '''Semiconductor Chip Protection Act of 1984''' (or '''SCPA''') is an act of the [[US Congress]] that makes the [[IC layout|layouts]] of [[integrated circuit]]s legally protected upon registration, and hence illegal to copy without permission.
{{Short description|United States intellectual property law}}
{{Use mdy dates|date = March 2019}}
{{Infobox U.S. legislation
| shorttitle = Semiconductor Chip Protection Act of 1984
| othershorttitles = {{unbulleted list|State Justice Institute Act of 1984|Technical Amendments to the [[Federal Courts Improvement Act]] of 1982|Trademark Clarification Act of 1984}}
| longtitle = An act to amend title 28, United States Code, with respect to the places where court shall be held in certain judicial districts, and for other purposes.
| colloquialacronym = SCPA
| nickname = Federal District Court Organization Act of 1984
| enacted by = 98th
| effective date = November 8, 1984
| public law url = http://www.gpo.gov/fdsys/pkg/STATUTE-98/pdf/STATUTE-98-Pg3335.pdf
| cite public law = 98–620
| cite statutes at large = {{usstat|98|3335}} ''aka'' 98 Stat. 3347
| acts amended = [[Lanham Act|Trademark Act of 1946]]
| acts repealed =
| title amended = {{unbulleted list|[[Title 15 of the United States Code|15 U.S.C.: Commerce and Trade]]|[[Title 17 of the United States Code|17 U.S.C.: Copyrights]]}}
| sections created = {{Usc-title-chap|17|9}} § 901 et seq.
| sections amended = {{Usc-title-chap|15|22}} § 1051 et seq.
| leghisturl = http://thomas.loc.gov/cgi-bin/bdquery/z?d098:HR06163:@@@R
| introducedin = House
| introducedbill = {{USBill|98|H.R.|6163}}
| introducedby = [[Robert Kastenmeier]] ([[Democratic Party (United States)|D]]-[[Wisconsin|WI]])
| introduceddate = August 10, 1984
| committees = [[United States House Committee on the Judiciary|House Judiciary]], [[United States Senate Committee on the Judiciary|Senate Judiciary]]
| passedbody1 = House
| passeddate1 = September 24, 1984
| passedvote1 = passed voice vote
| passedbody2 = Senate
| passedas2 = <!-- used if the second body changes the name of the legislation -->
| passeddate2 = October 3, 1984
| passedvote2 = passed voice vote
| conferencedate =
| passedbody3 =
| passeddate3 =
| passedvote3 =
| agreedbody3 = House
| agreeddate3 = October 9, 1984
| agreedvote3 = 363-0
| agreedbody4 = <!-- used if agreedbody3 further amends legislation -->
| agreeddate4 = <!-- used if agreedbody3 further amends legislation -->
| agreedvote4 = <!-- used if agreedbody3 further amends legislation -->
| passedbody4 =
| passeddate4 =
| passedvote4 =
| signedpresident = [[Ronald Reagan]]
| signeddate = November 8, 1984
| unsignedpresident = <!-- used when passed without presidential signing -->
| unsigneddate = <!-- used when passed without presidential signing -->
| vetoedpresident = <!-- used when passed by overriding presidential veto -->
| vetoeddate = <!-- used when passed by overriding presidential veto -->
| overriddenbody1 = <!-- used when passed by overriding presidential veto -->
| overriddendate1 = <!-- used when passed by overriding presidential veto -->
| overriddenvote1 = <!-- used when passed by overriding presidential veto -->
| overriddenbody2 = <!-- used when passed by overriding presidential veto -->
| overriddendate2 = <!-- used when passed by overriding presidential veto -->
| overriddenvote2 = <!-- used when passed by overriding presidential veto -->
| amendments =
| SCOTUS cases =
}}
⚫
The '''Semiconductor Chip Protection Act of 1984''' (or '''SCPA''') is an act of the [[US Congress]] that makes the [[Integrated circuit layout|layouts]] of [[integrated circuit]]s legally protected upon registration, and hence illegal to copy without permission. It is an [[integrated circuit layout design protection]] law.


==Background==
==Background==
Prior to 1984, it was not necessarily illegal to produce a competing chip with an identical layout. As the legislative history for the SCPA explained, [[patent]] and [[copyright protection]] for chip layouts, chip ''topographies'', was largely unavailable.<ref>The Senate Report on the bill (S.Rep. No. 425, 98th Cong., 2d Sess. (1984)) stated:<blockquote>In the semiconductor industry, innovation is indispensable; research breakthroughs are essential to the life and health of the industry. But research and innovation in the design of semiconductor chips are threatened by the inadequacies of existing legal protection against piracy and unauthorized copying. This problem, which is so critical to this essential sector of the American economy, is addressed by the Semiconductor Chip Protection Act of 1984.... [The bill] would prohibit "chip piracy"--the unauthorized copying and distribution of semiconductor chip products copied from the original creators of such works.</blockquote>Quoted in [http://cases.justia.com/us-court-of-appeals/F2/977/1555/304802/ Brooktree Corp. v. Advanced Micro Devices, Inc.], 977 F.2d 1555, ¶ 17 (Fed. Cir. 1992). See also ''Brooktree'', ¶¶ 21-22 (copyright and patent law ineffective).</ref> This led to considerable complaint by American chip manufacturers—notably, [[Intel]], which, along with the [[Semiconductor Industry Association]] (SIA), took the lead in seeking remedial legislation—against what they termed "chip piracy." During the hearings that led to enactment of the SCPA, chip industry representatives asserted that a pirate could copy a chip design for $100,000 in 3 to 5 months that had cost its original manufacturer upwards of $1 million to design.<ref>{{cite web |last1=Page 35 |first1=HEARINGS BEFORE THE SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE |title=COPYRIGHT PROTECTION FOR SEMICONDUCTOR CHIPS |url=https://ipmall.law.unh.edu/sites/default/files/hosted_resources/lipa/trademarks/Copyright%20Protection%20for%20Semiconductor%20Chips,%20Subcomm.%20%28Aug.%203%20AND%20Dec.%201,%201983%29.pdf |access-date=24 August 2021}}</ref>
Prior to 1984, it was not necessarily illegal to produce a competing chip with an identical layout. As the legislative history for the SCPA explained, patent and copyright protection for chip layouts, or chip ''topographies'', was largely unavailable.<ref>The Senate Report on the bill (S.Rep. No. 425, 98th Cong., 2d Sess. (1984)) stated:
<blockquote>
In the semiconductor industry, innovation is indispensable; research breakthroughs are essential to the life and health of the industry. But research and innovation in the design of semiconductor chips are threatened by the inadequacies of existing legal protection against piracy and unauthorized copying. This problem, which is so critical to this essential sector of the American economy, is addressed by the Semiconductor Chip Protection Act of 1984. ...[The bill] would prohibit "chip piracy"--the unauthorized copying and distribution of semiconductor chip products copied from the original creators of such works.
</blockquote>
Quoted in [http://cases.justia.com/us-court-of-appeals/F2/977/1555/304802/ Brooktree Corp. v. Advanced Micro Devices, Inc.], 977 F.2d 1555, ¶ 17 (Fed. Cir. 1992). See also ''Brooktree'', ¶¶ 21-22 (copyright and patent law ineffective).</ref> This led to considerable complaint by U.S. chip manufacturers--notably, Intel, which, along with the Semiconductor Industry Association (SIA), took the lead in seeking remedial legislation--against what they termed "chip piracy." During the hearings that led to enactment of the SCPA, chip industry representatives asserted that a pirate could for $10,000 copy a chip design that had cost its original manufacturer upwards from $100,000 to design.


==Enactment of U.S. and other national legislation==
==Enactment of US and other national legislation==
In 1984 the United States enacted the '''Semiconductor Chip Protection Act of 1984''' (the ''SCPA'') to protect the topography of semiconductor chips. The SCPA is found in title 17, U.S. Code, sections 901-914 ([http://www.copyright.gov/title17/92chap9.html 17 U.S.C. §§ 901-914]).
In 1984 the United States enacted the '''Semiconductor Chip Protection Act of 1984''' (the ''SCPA'') to protect the topography of semiconductor chips. The SCPA is found in title 17, U.S. Code, sections 901-914 ([http://www.copyright.gov/title17/92chap9.html 17 U.S.C. §§ 901-914]).


Japan<ref>Japan was the first country to enact its own version of the SCPA, the Japanese "Act Concerning the Circuit Layout of a Semiconductor Integrated Circuit" of 1985.</ref> and European Community (EC) countries soon followed suit<ref>In 1986 the EC promulgated a directive requiring its members to adopt national legislation for the protection of semiconductor topographies. Council Directive 1987/54/EEC of 16 Dec. 1986 on the ''Legal Protection of Topographies of Semiconductor Products'', art. 1(1)(b), 1987 O.J. (L 24) 36.</ref> and enacted their own, similar laws protecting the topography of semiconductor chips.<ref>The UK enacted the Copyright, Designs and Patents Act, 1988, c. 48, § 213, after initially taking the position that its copyright law fully protected chip topographies. See [[British Leyland Motor Corp. v. Armstrong Patents Co.]] Criticisms of inadequacy of the UK copyright approach as perceived by the U.S. chip industry are summarized in [http://ieeexplore.ieee.org/stamp/stamp.jsp?arnumber=04089472 Further chip rights developments], Micro Law, IEEE Micro, Aug. 1985, pp. 91-92.
Japan<ref>Japan was the first country to enact its own version of the SCPA, the Japanese "Act Concerning the Circuit Layout of a Semiconductor Integrated Circuit" of 1985.</ref> and European Community (EC) countries soon followed suit<ref>In 1986 the EC promulgated a directive requiring its members to adopt national legislation for the protection of semiconductor topographies. Council Directive 1987/54/EEC of 16 Dec. 1986 on the ''Legal Protection of Topographies of Semiconductor Products'', art. 1(1)(b), 1987 O.J. (L 24) 36.</ref> and enacted their own, similar laws protecting the topography of semiconductor chips.<ref>The UK enacted the Copyright, Designs and Patents Act, 1988, c. 48, § 213, after it initially took the position that its copyright law fully protected chip topographies. See [[British Leyland Motor Corp. v. Armstrong Patents Co.]]


Criticisms of inadequacy of the UK copyright approach as perceived by the US chip industry are summarized in [http://ieeexplore.ieee.org/stamp/stamp.jsp?arnumber=04089472 Further chip rights developments], Micro Law, IEEE Micro, Aug. 1985, pp. 91-92.
⚫
Australia passed the Circuit Layouts Act of 1989 as a ''sui generis'' form of chip protection. In 19_ Korea passed the ''Act Concerning the Layout-Design of Semiconductor Integrated Circuits''.</ref>


⚫
Australia passed the Circuit Layouts Act of 1989 as a ''sui generis'' form of chip protection. Korea passed the ''Act Concerning the Layout-Design of Semiconductor Integrated Circuits''</ref>
⚫
Chip topographies are also protected by TRIPS, an international treaty.<ref>On Jan. 1, 1995, the ''Agreement on Trade-Related Aspects of Intellectual Property Rights'' (TRIPs) (Annex 1C to the World Trade Organization (WTO) Agreement), went into force. Part II, section 6 of TRIPs protects semiconductor chip products and was the basis for Presidential Proclamation No. 6780, March 23, 1995, under SCPA § 902(a)(2), extending protection to all present and future WTO members.</ref>

⚫
Chip topographies are also protected by [[TRIPS Agreement|TRIPS]], an international treaty.<ref>On Jan. 1, 1995, the ''Agreement on Trade-Related Aspects of Intellectual Property Rights'' (TRIPs) (Annex 1C to the World Trade Organization (WTO) Agreement), went into force. Part II, section 6 of TRIPs protects semiconductor chip products and was the basis for Presidential Proclamation No. 6780, March 23, 1995, under SCPA § 902(a)(2), extending protection to all present and future WTO members.</ref>


==How the SCPA operates==
==How the SCPA operates==
⚫
===''Sui generis'' law===
Although the U.S. SCPA is codified in title 17 (copyrights), the SCPA is not a [[copyright]] or [[patent]] law. Rather, it is a ''[[sui generis]]'' law resembling a [[utility model]] law or ''[[Gebrauchsmuster]]''. It has some aspects of copyright law, some aspects of patent law, and in some ways, it is completely different from either. From ''Brooktree'', ¶ 23:


⚫
<blockquote>The Semiconductor Chip Protection Act of 1984 was an innovative solution to this new problem of technology-based industry. While some copyright principles underlie the law, as do some attributes of patent law, the Act was uniquely adapted to semiconductor mask works, in order to achieve appropriate protection for original designs while meeting the competitive needs of the industry and serving the public interest.</blockquote>
⚫
===A ''sui generis'' law===

⚫
Although the U.S. SCPA is codified in title 17 (copyrights), the SCPA is not a [[copyright]] or [[patent]] law. Rather, it is a ''[[sui generis]]'' law resembling a [[utility model]] law or ''[[Gebrauchsmuster]]''. It has some aspects of copyright law, some aspects of patent law, and in some ways it is completely different from either. From ''Brooktree'', ¶ 23: <blockquote>The Semiconductor Chip Protection Act of 1984 was an innovative solution to this new problem of technology-based industry. While some copyright principles underlie the law, as do some attributes of patent law, the Act was uniquely adapted to semiconductor mask works, in order to achieve appropriate protection for original designs while meeting the competitive needs of the industry and serving the public interest."</blockquote> In general, the chip topography laws of other nations are also ''sui generis'' laws. Nevertheless, copyright and patent [[case law]] illuminate many aspects of the SCPA and its interpretation.
In general, the chip topography laws of other nations are also ''sui generis'' laws. Nevertheless, copyright and patent [[case law]] illuminate many aspects of the SCPA and its interpretation.


===Acquisition of protection by registration===
===Acquisition of protection by registration===
Chip protection is acquired under the SCPA by filing with the U.S. Copyright Office an application for "mask work" registration under the SCPA, together with a filing fee. The application must be accompanied by identifying material, such as pictorial representations of the IC layers--so that, in the event of infringement litigation, it can be determined what the registration covers. Protection continues for ten years from the date of registration.
Chip protection is acquired under the SCPA by filing with the US Copyright Office an application for "mask work" registration under the SCPA, together with a filing fee. The application must be accompanied by identifying material, such as pictorial representations of the IC layers so that in the event of infringement litigation, it can be determined what the registration covers. Protection continues for ten years from the date of registration.


===Mask works===
===Mask works===
The SCPA repeatedly refers to "mask works." This term is a relic of the original form of the bill that became the SCPA and was passed in the Senate as an amendment to the Copyright Act. The term mask work is parallel to and consistent with the terminology of the 1976 Copyright Act, which introduced the concept of "literary works," "pictorial works," "audiovisual works," and the like--and which protected physical embodiments of such works, such as books, paintings, video game cassettes, and the like against unauthorized copying and distribution. This terminology became unnecessary when the House of Representatives insisted on the substitution of a ''sui generis'' bill, but the SCPA as enacted nonetheless continued its use. The term "mask work" is not limited to actual masks used in chip manufacture, but is defined broadly in the SCPA to include the topographic creation embodied in the masks and chips. Moreover, the SCPA protects any physical embodiment of a mask work.<ref>The SCPA, [(17 U.S.C. § 901(a)(2))], defines a '''mask work''' as "a series of related images, however fixed or encoded, having or representing the predetermined, three-dimensional pattern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product, and in which the relation of the images to one another is such that each image has the pattern of the surface of one form of the semiconductor chip product."</ref>
The SCPA repeatedly refers to "mask works." The term is a relic of the original form of the bill that became the SCPA and was passed in the Senate as an amendment to the Copyright Act. The term mask work is parallel to and consistent with the terminology of the 1976 Copyright Act, which introduced the concept of "literary works," "pictorial works," "audiovisual works," and the like and protected physical embodiments of such works, such as books, paintings, video game cassettes, and the like against unauthorized copying and distribution. The terminology became unnecessary when the House of Representatives insisted on the substitution of a ''sui generis'' bill, but the SCPA as enacted still continued its use.<ref>See generally Thomas Hoeren, Francesca Guadagno, and Sacha Wunsch-Vincent, [https://www.researchgate.net/publication/291791824_Breakthrough_technologies_-_Semiconductor_innovation_and_intellectual_property ''Breakthrough Technologies – Semiconductors, Innovation and Intellectual Property''], {{smallcaps|WIPO Econ. Rsch. Working Paper No. 27}} (Nov. 2015), p. 28 (discussing introduction of term "mask work"). Hoeren discusses, ''id''. n.143, the insistence of Copyright Office General Counsel Dorothy Schrader that the copyright version of the SCPA must have a "work" to be protected, in accordance with the concept of the 1976 Copyright Act. The proponents of chip protection responded, Hoeren recounts: "She wants a 'work'? OK, she can have a 'mask work' if that will satisfy her." So that 'work' went into the next draft of the Senate bill. The mask work concept had nothing to do with ''sui generis''. It was an attempt to assimilate the chip protection sought to the copyright pattern of literary works, pictorial works, musical works,
etc. But once in the Senate bill it stayed in and was carried over to the subsequent House bill."</ref> The term "mask work" is not limited to actual masks used in chip manufacture but is defined broadly in the SCPA to include the topographic creation embodied in the masks and chips. Moreover, the SCPA protects any physical embodiment of a mask work.<ref>The SCPA, [(17 U.S.C. § 901(a)(2))], defines a '''mask work''' as "a series of related images, however fixed or encoded, having or representing the predetermined, three-dimensional pattern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product, and in which the relation of the images to one another is such that each image has the pattern of the surface of one form of the semiconductor chip product."</ref>


===Enforcement===
===Enforcement===
Line 32: Line 94:


===Functionality unprotected===
===Functionality unprotected===
The SCPA does not protect functional aspects of chip designs. That is reserved to patent law. Although EPROM and other memory chips topographies are protectable under the SCPA, such protection does not extend to the information stored in chips, such as computer programs. Such information is protected, if at all, only by copyright law.
The SCPA does not protect functional aspects of chip designs, which is reserved to [[Patent|patent law]]. Although EPROM and other memory chips topographies are protectable under the SCPA, such protection does not extend to the information stored in chips, such as computer programs. Such information is protected, if at all, only by [[Copyright|copyright law]].


===Reverse engineering not prohibited===
===Reverse engineering allowed===
The SCPA permits competitive emulation of a chip by means of reverse engineering. The ordinary test for illegal copying (mask work infringement) is the "[[substantial similarity]]" test of copyright law,<ref>''Brooktree'', ¶¶ 31-33.</ref> but when the defense of reverse engineering is involved and supported by probative evidence (usually, the so-called paper trail of design and development work), the similarity must be greater.<ref>''Brooktree'', ¶¶ 48-66.</ref> Then, the accused chip topography must be substantially identical (truly copied by rote, so-called slavish copying), rather than just substantially similar, for the defendant to be liable for infringement.<ref>See Explanatory Memorandum, Mathias-Leahy Amendments to S. 1201, 130 Cong. Rec. S12, 91617 (daily ed. Oct. 3, 1984). See also [http://bulk.resource.org/courts.gov/c/F2/977/977.F2d.1555.91-1259.91-1258.html Brooktree Corp. v. Advanced Micro Devices, Inc.], 977 F.2d 1555, 1566-67 (Fed. Cir. 1992); Leo J. Raskind, ''Reverse Engineering, Unfair Competition, and Fair Use'', 70 Minn. L. Rev. 385, 406 (1985).</ref> Most world chip topography protection laws provide for a reverse engineering privilege.
The SCPA permits competitive emulation of a chip by means of [[reverse engineering]]. The ordinary test for illegal copying (mask work infringement) is the "[[substantial similarity]]" test of copyright law,<ref>''Brooktree'', ¶¶ 31-33.</ref> but when the defense of reverse engineering is involved and supported by probative evidence (usually, the so-called paper trail of design and development work), the similarity must be greater.<ref>''Brooktree'', ¶¶ 48-66.</ref> Then, the accused chip topography must be substantially identical (truly copied by rote, so-called slavish copying) rather than just substantially similar for the defendant to be liable for infringement.<ref>See Explanatory Memorandum, Mathias-Leahy Amendments to S. 1201, 130 Cong. Rec. S12, 91617 (daily ed. Oct. 3, 1984). See also [http://bulk.resource.org/courts.gov/c/F2/977/977.F2d.1555.91-1259.91-1258.html Brooktree Corp. v. Advanced Micro Devices, Inc.], 977 F.2d 1555, 1566-67 (Fed. Cir. 1992); Leo J. Raskind, ''Reverse Engineering, Unfair Competition, and Fair Use'', 70 Minn. L. Rev. 385, 406 (1985).</ref> Most world chip topography protection laws provide for a reverse engineering privilege.

== See also ==

* [[Integrated circuit layout design protection]]
* [[Chip art]] - Prior to the Semiconductor Chip Protection Act, the presence of chip art (non-functional images) was used to establish that a chip was a rote copy, not reverse engineered.


==References==
==References==
{{reflist}}
{{reflist}}


==See also==
==Further reading==
* [[Richard H. Stern]], [http://www.amazon.com/dp/031729413X Semiconductor Chip Protection], Harcourt Brace/Aspen Law & Business (June 1985), ISBN 978-0317294132.
* [[Richard H. Stern]], [https://www.amazon.com/dp/031729413X Semiconductor Chip Protection], Harcourt Brace/Aspen Law & Business (June 1985), {{ISBN|978-0-317-29413-2}}.
* ''Symposium: The Semiconductor Chip Protection Act of 1984 and Its Lessons'', 70 Minn. L. Rev. 263 (1985) - six law review articles on SCPA.
* ''Symposium: The Semiconductor Chip Protection Act of 1984 and Its Lessons'', 70 Minn. L. Rev. 263 (1985) - six law review articles on SCPA.
* [http://ieeexplore.ieee.org/stamp/stamp.jsp?arnumber=85718&isnumber=2802 The first chip-layout copying case], ''IEEE Micro'', v. 11, no. 4. Aug 1991. Also available at this [http://docs.law.gwu.edu/facweb/claw/BrooktAMD.pdf link]. Technical article on proof of chip copying.
* [http://ieeexplore.ieee.org/stamp/stamp.jsp?arnumber=85718&isnumber=2802 The first chip-layout copying case], ''[[IEEE Micro]]'', v. 11, no. 4. Aug 1991. Also available at this [http://docs.law.gwu.edu/facweb/claw/BrooktAMD.pdf link]. Technical article on proof of chip copying.
* {{cite journal |title=The Semiconductor Chip Protection Act: Past, Present, and Future |author=Steven P. Kasch |journal=Berkeley Technology Law Journal |volume=7 |issue=1 |year=1992 |url=https://btlj.org/data/articles2015/vol7/7_1/7-berkeley-tech-l-j-0071-0106.pdf}}



[[Category:Integrated circuits]]
[[Category:Integrated circuits]]
[[Category:United States federal intellectual property legislation]]
[[Category:United States federal intellectual property legislation]]
[[Category:1984 in law]]
[[Category:1984 in American law]]
[[Category:Reverse engineering]]

Latest revision as of 03:58, 13 April 2023

Semiconductor Chip Protection Act of 1984
Great Seal of the United States
Other short titles
Long titleAn act to amend title 28, United States Code, with respect to the places where court shall be held in certain judicial districts, and for other purposes.
Acronyms (colloquial)SCPA
NicknamesFederal District Court Organization Act of 1984
Enacted bythe 98th United States Congress
EffectiveNovember 8, 1984
Citations
Public law98–620
Statutes at Large98 Stat. 3335 aka 98 Stat. 3347
Codification
Acts amendedTrademark Act of 1946
Titles amended
U.S.C. sections created17 U.S.C. ch. 9 § 901 et seq.
U.S.C. sections amended15 U.S.C. ch. 22 § 1051 et seq.
Legislative history
  • Introduced in the House as H.R. 6163 by Robert Kastenmeier (D-WI) on August 10, 1984
  • Committee consideration by House Judiciary, Senate Judiciary
  • Passed the House on September 24, 1984 (passed voice vote)
  • Passed the Senate on October 3, 1984 (passed voice vote) with amendment
  • House agreed to Senate amendment on October 9, 1984 (363-0)
  • Signed into law by President Ronald Reagan on November 8, 1984

The Semiconductor Chip Protection Act of 1984 (or SCPA) is an act of the US Congress that makes the layouts of integrated circuits legally protected upon registration, and hence illegal to copy without permission. It is an integrated circuit layout design protection law.

Background[edit]

Prior to 1984, it was not necessarily illegal to produce a competing chip with an identical layout. As the legislative history for the SCPA explained, patent and copyright protection for chip layouts, chip topographies, was largely unavailable.[1] This led to considerable complaint by American chip manufacturers—notably, Intel, which, along with the Semiconductor Industry Association (SIA), took the lead in seeking remedial legislation—against what they termed "chip piracy." During the hearings that led to enactment of the SCPA, chip industry representatives asserted that a pirate could copy a chip design for $100,000 in 3 to 5 months that had cost its original manufacturer upwards of $1 million to design.[2]

Enactment of US and other national legislation[edit]

In 1984 the United States enacted the Semiconductor Chip Protection Act of 1984 (the SCPA) to protect the topography of semiconductor chips. The SCPA is found in title 17, U.S. Code, sections 901-914 (17 U.S.C. §§ 901-914).

Japan[3] and European Community (EC) countries soon followed suit[4] and enacted their own, similar laws protecting the topography of semiconductor chips.[5]

Chip topographies are also protected by TRIPS, an international treaty.[6]

How the SCPA operates[edit]

Sui generis law[edit]

Although the U.S. SCPA is codified in title 17 (copyrights), the SCPA is not a copyright or patent law. Rather, it is a sui generis law resembling a utility model law or Gebrauchsmuster. It has some aspects of copyright law, some aspects of patent law, and in some ways, it is completely different from either. From Brooktree, ¶ 23:

The Semiconductor Chip Protection Act of 1984 was an innovative solution to this new problem of technology-based industry. While some copyright principles underlie the law, as do some attributes of patent law, the Act was uniquely adapted to semiconductor mask works, in order to achieve appropriate protection for original designs while meeting the competitive needs of the industry and serving the public interest.

In general, the chip topography laws of other nations are also sui generis laws. Nevertheless, copyright and patent case law illuminate many aspects of the SCPA and its interpretation.

Acquisition of protection by registration[edit]

Chip protection is acquired under the SCPA by filing with the US Copyright Office an application for "mask work" registration under the SCPA, together with a filing fee. The application must be accompanied by identifying material, such as pictorial representations of the IC layers so that in the event of infringement litigation, it can be determined what the registration covers. Protection continues for ten years from the date of registration.

Mask works[edit]

The SCPA repeatedly refers to "mask works." The term is a relic of the original form of the bill that became the SCPA and was passed in the Senate as an amendment to the Copyright Act. The term mask work is parallel to and consistent with the terminology of the 1976 Copyright Act, which introduced the concept of "literary works," "pictorial works," "audiovisual works," and the like and protected physical embodiments of such works, such as books, paintings, video game cassettes, and the like against unauthorized copying and distribution. The terminology became unnecessary when the House of Representatives insisted on the substitution of a sui generis bill, but the SCPA as enacted still continued its use.[7] The term "mask work" is not limited to actual masks used in chip manufacture but is defined broadly in the SCPA to include the topographic creation embodied in the masks and chips. Moreover, the SCPA protects any physical embodiment of a mask work.[8]

Enforcement[edit]

The owner of mask work rights may pursue an alleged infringer ("chip pirate") by bringing an action for mask work infringement in federal district court. The remedies available correspond generally to those of copyright law and patent law.

Functionality unprotected[edit]

The SCPA does not protect functional aspects of chip designs, which is reserved to patent law. Although EPROM and other memory chips topographies are protectable under the SCPA, such protection does not extend to the information stored in chips, such as computer programs. Such information is protected, if at all, only by copyright law.

Reverse engineering allowed[edit]

The SCPA permits competitive emulation of a chip by means of reverse engineering. The ordinary test for illegal copying (mask work infringement) is the "substantial similarity" test of copyright law,[9] but when the defense of reverse engineering is involved and supported by probative evidence (usually, the so-called paper trail of design and development work), the similarity must be greater.[10] Then, the accused chip topography must be substantially identical (truly copied by rote, so-called slavish copying) rather than just substantially similar for the defendant to be liable for infringement.[11] Most world chip topography protection laws provide for a reverse engineering privilege.

See also[edit]

References[edit]

  1. ^ The Senate Report on the bill (S.Rep. No. 425, 98th Cong., 2d Sess. (1984)) stated:

    In the semiconductor industry, innovation is indispensable; research breakthroughs are essential to the life and health of the industry. But research and innovation in the design of semiconductor chips are threatened by the inadequacies of existing legal protection against piracy and unauthorized copying. This problem, which is so critical to this essential sector of the American economy, is addressed by the Semiconductor Chip Protection Act of 1984.... [The bill] would prohibit "chip piracy"--the unauthorized copying and distribution of semiconductor chip products copied from the original creators of such works.

    Quoted in Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, ¶ 17 (Fed. Cir. 1992). See also Brooktree, ¶¶ 21-22 (copyright and patent law ineffective).
  2. ^ Page 35, HEARINGS BEFORE THE SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE. "COPYRIGHT PROTECTION FOR SEMICONDUCTOR CHIPS" (PDF). Retrieved August 24, 2021.{{cite web}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)
  3. ^ Japan was the first country to enact its own version of the SCPA, the Japanese "Act Concerning the Circuit Layout of a Semiconductor Integrated Circuit" of 1985.
  4. ^ In 1986 the EC promulgated a directive requiring its members to adopt national legislation for the protection of semiconductor topographies. Council Directive 1987/54/EEC of 16 Dec. 1986 on the Legal Protection of Topographies of Semiconductor Products, art. 1(1)(b), 1987 O.J. (L 24) 36.
  5. ^ The UK enacted the Copyright, Designs and Patents Act, 1988, c. 48, § 213, after it initially took the position that its copyright law fully protected chip topographies. See British Leyland Motor Corp. v. Armstrong Patents Co. Criticisms of inadequacy of the UK copyright approach as perceived by the US chip industry are summarized in Further chip rights developments, Micro Law, IEEE Micro, Aug. 1985, pp. 91-92. Australia passed the Circuit Layouts Act of 1989 as a sui generis form of chip protection. Korea passed the Act Concerning the Layout-Design of Semiconductor Integrated Circuits
  6. ^ On Jan. 1, 1995, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) (Annex 1C to the World Trade Organization (WTO) Agreement), went into force. Part II, section 6 of TRIPs protects semiconductor chip products and was the basis for Presidential Proclamation No. 6780, March 23, 1995, under SCPA § 902(a)(2), extending protection to all present and future WTO members.
  7. ^ See generally Thomas Hoeren, Francesca Guadagno, and Sacha Wunsch-Vincent, Breakthrough Technologies – Semiconductors, Innovation and Intellectual Property, WIPO Econ. Rsch. Working Paper No. 27 (Nov. 2015), p. 28 (discussing introduction of term "mask work"). Hoeren discusses, id. n.143, the insistence of Copyright Office General Counsel Dorothy Schrader that the copyright version of the SCPA must have a "work" to be protected, in accordance with the concept of the 1976 Copyright Act. The proponents of chip protection responded, Hoeren recounts: "She wants a 'work'? OK, she can have a 'mask work' if that will satisfy her." So that 'work' went into the next draft of the Senate bill. The mask work concept had nothing to do with sui generis. It was an attempt to assimilate the chip protection sought to the copyright pattern of literary works, pictorial works, musical works, etc. But once in the Senate bill it stayed in and was carried over to the subsequent House bill."
  8. ^ The SCPA, [(17 U.S.C. § 901(a)(2))], defines a mask work as "a series of related images, however fixed or encoded, having or representing the predetermined, three-dimensional pattern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product, and in which the relation of the images to one another is such that each image has the pattern of the surface of one form of the semiconductor chip product."
  9. ^ Brooktree, ¶¶ 31-33.
  10. ^ Brooktree, ¶¶ 48-66.
  11. ^ See Explanatory Memorandum, Mathias-Leahy Amendments to S. 1201, 130 Cong. Rec. S12, 91617 (daily ed. Oct. 3, 1984). See also Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1566-67 (Fed. Cir. 1992); Leo J. Raskind, Reverse Engineering, Unfair Competition, and Fair Use, 70 Minn. L. Rev. 385, 406 (1985).

Further reading[edit]

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