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In introducing H. R. 1028, Mr. Edwards aptly described the importance of semiconductor chip technology to our country; the investment,

skill, and effort, required to develop chips; and the ease with which "chip pirates" rip off these products, "undersell the innovator and flood the market with cheap copies of the chip. "2/ Senator Mathias in introducing the companion bill, S. 1201, observed that "creative scientists and engineers must be protected from theft and exploitation" and that the "ingenuity of an age that has produced a tool as remarkable as the computer chip should be able to devise laws adequate to protect it."3/

The Copyright Office fully agrees with these remarks: those who create must be rewarded and protected by our laws. If the Congress accepts this point in principle, it should be possible to fashion a law that will protect the creators and innovators of semiconductor chip products against piracy.

The question then is: what scheme or mode of protection should be devised to protect against chip piracy traditional copyright with a few modifications, or a new, specially tailored law based on design copyright principles?

The questions which we are raising about the mode of protection and particular features of the bill are offered to assist in the public debate on this major public policy issue. With this purpose in mind, the Copyright Office in this statement first reviews the present law and Office practices, previous consideration of the chip piracy issue, chip techno

2. 129 Cong. Rec. Daily H 643 (February 24, 1983).

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logy, and the need for protection. Next, we analyze the major features of H.R. 1028 and a revision of S. 1201 as reported by the Senate Subcommittee on Patents, Copyrights, and Trademarks, discuss some concerns about the bill and the Senate version and discuss the design approach for protecting chips.

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Semiconductor chip technology involves several related elements, some of which are presently registrable4/ under the Copyright Act, 5/ but the scope of the protection is inadequate or uncertain.

Arguments in favor of protection for chips or chip design under

the current Act must confront the barriers of at least four fundamental principles of traditional copyright law: copyright does not protect useful articles/ per se; copyright protects the design of a useful article only to the extent that artistic features can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the

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Registration of a claim to copyright is made by the Copyright Office following examination if the Office determines that the material deposited constitutes copyrightable subject matter and the other legal and formal requirements of the Act are satisfied. 17 U.S.C. 410(a). If registration is refused, action for infringement may nevertheless be instituted pursuant to 17 U.S.C. 411(a), provided the Register of Copyrights is duly served a notice of the action. The Copyright Office has special expertise regarding registrability. What is protectible under the Act, and the scope of protection, are ultimately for the courts to decide.

Title 17 of the United States Code, §§101 et seq. (hereafter generally the "Copyright Act" or the "Act").

Section 101 of the Act defines a useful article as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information."

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article; copyright in a drawing or other representation of a useful article

does not protect against unauthorized duplication of the useful article;

and copyright protects only expression

not ideas, plans, or processes.

Section 102(b) of the Copyright Act of 1976 clearly provides

that: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, or embodied in such work." 17 U.S.C. $102(b) (Supp. IV 1980). See Baker v. Selden, 101 U.S. 99 (1879). Moreover, where there are only a limited number of ways to express an idea, there may be no protection for the particular expression. See Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678 (1st Cir. 1967) (particular form of expressian found to came from subject matter).

1. Technical drawings. Schematic diagrams or similar works containing technical data and drawings of electrical circuits which constitute "original works of authorship" [17 U.S.C. 102(a)] are registrable as "pictorial, graphic, or sculptural works." 17 U.S.C. 101. However, under section 113 of the Copyright Act, protection apparently would not extend to the semiconductor chip product portrayed by the drawing or technical data. Generally, under section 113(b), the extent of protection afford

ed a technical drawing that portrays a useful article as such is to be construed in accordance with the law in effect on December 31, 1977. The 1976 House Report/ refers back to the 1961 Report of the Register of Copyrights where it was stated that, on the basis of judicial precedent, "copyright in a pictorial, graphic, or sculptural work, portraying a useful

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H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 105 (1976) (hereafter, the 1976 House Report.

article as such, does not extend to the manufacture of the useful article itself," and recommended specifically that "the distinctions drawn in this area by existing court decisions" not be altered by the statute. The House Report also noted the discussion of this subject in the Register's 1965 Supplementary Report.8/ The 1965 Supplementary Report contains, in a note, a list of court decisions illustrating what is meant by a work portraying a useful article as such.9/

Technical drawings, prepared as part of the intermediary stages of chip manufacture, are sometimes alleged to be embodied in mylar sheets, photolithographic masks, and related products. The Copyright Office is not aware of any court decision specifically upholding the validity of copyright in such "technical drawings." Sometimes registration has been made on the basis of the "drawing" authorship and the technical data conveyed. As one moves from traditional blueprint-type drawings to mylar sheets and

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Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill, Copyright Law Revision Part 6, 47-48 (1965).

9. Id. at 48. The following cases are of particular relevance: Muller v. Triborough Bridge Authority, 43 F. Supp. 298, 300 (S.D.N.Y. 1942) court found that "plaintiff's copyright of a drawing, showing a novel bridge approach to unsnarl traffic congestion, does not prevent any one from using and applying the system of traffic separation therein set forth"); Jack Adelman, Inc. v. Sonners & Gordon, Inc., 112 F. Supp. 187, 190 (S.D.N.Y. 1934) ("To give an author or designer an exclusive right to manufacture the art described in the certificate of copyright registration, when no official examination of its novelty has ever been made, would unjustly create a monopoly and moreover would unsurp the functions of letters-patent"); and Fulmer v. United States, 103 F. Supp. 1021 (Ct. Cl. 1952) (case involved copyrighted design showing a top view and a side view of a parachute with irregular curved lines 'painted or dyed upon the cloth of the parachute. The court concluded that plaintiff's petition did not state a cause of action for infringement of copyright).

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masks, questions arise about registrability because of uncertainty as to whether the sheets and masks convey information, or are simply part of the manufacturing process.

2. Chips and imprinted patterns therein. The Copyright Office historically has refused, and presently does refuse, to register claims to copyright in the design or layout of printed circuit boards, the design or "topology" of, or imprinted patterns in, semiconductor chips, and the printed circuit boards and chips themselves.10/ The topology of a microelectronic circuit or other device formed in semiconductor material is arguably an intrinsically useful part of a useful article. The patterns formed in and on semiconductor material, usually a silicon wafer, are used primarily to open "windows" in the material in order to permit the introduction of certain chemical substances, which in turn result in the formation of transistors, interconnections, etc.

Useful Articles. Courts have consistently refused to extend copyright protection to useful articles as such. A District Court in a case involving the design of a radio cabinet found that: "Copyright infringement, however, can only be based upon appropriation of subject matter. It is conceded that the idea, as distinguished from the expression

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In addition, the Copyright Office will refuse to register a claim to
copyright in a chip product or design based on the contention that the
chip represents the published version or embodiment of a copyrightable
(and, perhaps, registered) technical drawing. An action was filed
against the Office in 1977 to compel such registration, but the case
was withdrawn without prejudice on the understanding that the Office
would file the chip in its correspondence records, while not accepting
it as a deposit copy. Intel Corp v. Ringer, C 77-2848 (N.D. Cal.,
October 10, 1978). A suit has been filed to establish the validity of
a claimed copyright in the Zilog, Inc 280 microprocessor chip. Zilog,
Inc. v. Nippon Electric Co. Ltd. (NEC) of Tokyo, CIV. NO. C-83-1241
WHO (N.D. Cal., March 1983) Copyright registration has been made as a
technical drawing based on a paper blueprint-type deposit. A patent
has apparently issued for the microprocessor apparatus and method of

the Z80.

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