18 systems have become commercially available that, once a layout designer inputs specific schematic data from a logic diagram or a higher-level symbolic description, are capable of making most of the placement and routing determinations. Although it appears likely that the layout process may eventually be completely automated, technical skill is still required of a chip architect in the layout design. A layout design is usually based upon a preexisting technical drawing or other representation of schematic data. Where a designer uses an interactive computer system to determine the placement of the electrical elements on the surface of a semiconductor wafer and the routing of the "wires", and today this is standard industry practice, the first step in the layout process is the inputting of the schematic data into the computer. The layout designer then manipulates the schematic database, with the assistance of computer programs, to produce the layout and interconnection pattems to be used in the fabrication of a microelectronic circuit or other devices. 4. Fabrication of devices in semiconductor material. Once a layout design is finalized, the encoded layout patterns are used in the patterning and fabrication processes to implement the desired integrated system. While the patterns are usually transferred to a silicon wafer by a photolithographic process using a series of masks, it is now possible to "write" the patterns directly on a wafer using electron-beam technology. Apparently, this new method of imprinting patterns on semiconductor material is intended to be covered by H.R. 1028. In his detailed analysis of the bill, Congressman Edwards stated that: "The fourth of these exclusive rights is inclusive of all means of embodying the images of a 19 mask onto a chip. This includes not only the use of masks to do so, but also the new technological process of impressing the image directly onto the chip with the aid of a computer-driven light beam."23/ The need for protection against chip piracy has been concisely and forcefully set out by Congressman Edwards in remarks accompanying the introduction of H.R. 1028. The layout and design process, and the preparation of the photographic "masks" used to etch, deposit layers on, and otherwise process the chips often take the innovating chip firms years, consume thousands of hours of their engineers' and technicians' time, and cost millions of dollars. Yet, a pirate firm can photograph the chip and its layers, and in several months and for a cost of less than $50,000 duplicate the mask work of the innovator. Continuation of such piracy may make it impossible for the semicondutor industry to continue to invest in development of new chips. Thus, unless this piracy is stopped, the industrial leadership enjoyed in the past by the American semiconductor industry may vanish. Present law offers American industry only limited protection against this misappropriation of their technology.24/ The Copyright Office is in accord with these views, and we agree that the present law is inadequate to stem chip piracy. Since the last Congressional hearings on chip piracy, the need for protection has became even clearer. This seems true notwithstanding increased reliance on com puter programs to design and create layouts of chips and the judicial developments in the field of computer programs. 25/ 129 Cong. Rec. Daily H 643, H 644 (February 24, 1983). 23. 24. 25. Recent cases upholding copyright in computer programs include: Providing protection for computer programs is not equivalent to providing protection for semiconductor chips per se. As Senator Mathias has pointed out 26/ the semiconductor or integrated circuit chip is a marvel of modern solid state electronics. To a large measure, the chip has the capacity to combine, in a few square millimeters, the major elements of a conventional computer system the central information processor and large quantities of information storage capacity. In many cases processor and storage capacity may equal the typical computer system of only 10 years ago. Thus, the chip, at once, may carry out two fundamental functions of a computer system: 1) computing or processing information; and 2) storing either permanently or temporarily significant quantities of data. As well, some chips may have only one of those functions. The primary function of a whole family of chips is to store programs or data. These are the so-called ROM (read-only-memory) chip, the PROM (programmable-readonly-memory) chip, and the EPROM (erasable PROM) chip. Functionally, these chips can substitute for magnetic tape, disk, or core memory in a conventional computer system. Other chips have as their primary function to be a computer itself; to process and manipulate information by the execution of a computer program stored in a memory chip or in a portion of the processor chip designed to serve as a memory. 26. F.2d 870 (3d Cir. 1982); Hubco Data Products Corp. v. Management 129 Cong. Rec. at S 5992. 21 The copyright law presently provides protection for computer programs independently from their medium of fixation. It protects a program whether it is stored in a chip, a disk, a tape, or printed out on paper. Protection for the program does not protect the chip in which it is stored any more than protection for a novel protects the book format in which it is stored. Providing protection for that portion of a chip or the entire chip that is the functional equivalent of the processor hardware in a conventional computer system is a complex matter. As discussed earlier, copyright protection is presently available for the technical drawings that are prepared at various stages in the manufacture of a chip. Protection apparently does not extend to the chip form in which those works may ultimately be embodied. That lack of protection, of course, is the reason for this inquiry. B. Proprietary Interests Distinguished. Just as it is possible to distinguish among types of chips, it is possible and, perhaps, even necessary to distinguish among the various proprietary interests that are interrelated and brought together in chip technology. The owner of the proprietary interest, if any, in the layout or design of the chip may or may not be the owner of the proprietary interest in a program embodied in that chip. For example, the producer of an electronic video game may own the copyright in the audio-visual work that is the game (but there can be no copyright in the idea for the game). Such works are typically embodied in memory chips of the ROM or PROM types. The typical arrangement is for the game proprietor to develop the game and the computer program or programs necessary to create the sights and sounds presented on the cathode ray tube 22 tested, display in the game. When the programs are fully developed debugged and determined to be reliable the proprietor will have them embodied in a chip. If a small production run is contemplated, the game manufacturer may load the program in a PROM purchased from the chip manufacturer. If a large production run is contemplated, such as is the case in a home video game, the game producer may have a ROM produced by a chip manufacturer that permanently and unalterably stores the program. In both of these instances, the game producer is protected by the copyright in the audio-visual work and the underlying program. 27/ In neither instance is the proprietary interest of the chip manufacturer protected. It is true that in either case, the audio-visual work or the game play program may be copied by copying the chip. The game proprietor could use copyright to prevent that copying, but only to the extent it involved the program or the audio-visual work. 27. As noted in Apple Computer, Inc. v. Franklin Computer, Corp., 545 To date, the courts have generally found that separate copyrights may exist in an audio-visual work fixed in chips and in the computer program which operates the video game, but losing counsel have sometimes argued that the audio-visual work is not fixed and that copyright exists only in the computer program. |