13 1. Within the constraints of chip purpose and 2. 3. size, are the layouts, masks, and patterns dic- rather than copyrightable works of authorship. What are the limits of protection presently stored in the drawings, mylar sheets, photographic masks, im- to specific limitations regarding term of protec tion, scope of rights, or nature of infringement Many witnesses appeared. from the semiconductor chip industry either for or against the 1979 bill, H.R. 1007. Supporting witnesses argued that protection was essential to combat the rising threat of unfair 12. 13. To date, the Copyright Office has concluded that designs of semiconductor chips are not "original works of authorship" under the current Act. Later in this statement we consider whether Congress could constitutionally protect chips under the Copyright-Patent Clause. Statement of Jon Baumgarten, Copyright Protection for Imprinted Design 14 competition from chip pirates. They argued that the ability of firms to invest in development and research would be adversely affected by unchecked piracy, and they pointed to the threatening competition from Japan. Patent protection was available for only a few processes in creating chips. Supporters of H.R. 1007 saw it as a simple, constitutionally sound remedy against duplication of creative products. Opponents of H.R. 1007 argued that protection would reduce the ability of U.S. firms to compete in the world market and would increase costs to U.S. consumers.14/ They argued that 14. chips, as utilitarian articles, cannot appropriately existing copyright protection for computer programs industry practices of "second sourcing" or "reverse existing copyright remedies (especially the remedy protection was being sought for ideas; 19/ and copyright gives more protection than is necessary to 1979 Hearing at 51 (statement of John Finch, Vice-President, National Semiconductor Corp.) 19. 20. 1979 Hearing at 56 (statement of James M. Early, Division 1979 Hearing at 74 (letter of Quincy Rodgers, Director-Governmental Affairs, General Instrument Corp.). 15 One person argued that protection is needed, but not under copy right; he suggested legislation affording protection against misappropriation of proprietary information by illicit means. 21/ Apparently because of the force of the opposition to H.R. 1007, there was no further action on the bill. Senator Mathias and Congressman Edwards introduced S. 3117 and H.R. 7207 respectively near the end of the 97th Congress, for discussion purposes. These bills were virtually the same as H.R. 1028 and would have made mask works a new copyrightable subject matter category as a means of protecting the design or layout of semiconductor chips. As we informed the Congress in 1979, the Copyright Office does not consider itself expert in the field of semiconductor chip technology. In order to analyze the issues affecting copyright for the design of chips, however, the Office has reviewed the technical literature and has prepared the following lay explanation of the technology. A. Overview of Chip Design and Manufacture There are several distinct steps in the development of a microelectronic circuit to be formed in semiconductor material. The process usually starts with an abstract description of the electrical function to be performed by a particular circuit chip. In successive steps in the design process, the electrical specifications of the device are then set forth with increasing precision. At the risk of oversimplification, the process may be compared to the work of a city planner who drafts a plan to build a town in a given location that will have houses, a school and a 21. Id. at 76. 16 shopping center. The planner then hires an architect to design the town. Blueprints are drawn that specify where the streets are to be situated, how large the shopping center will be, what types of houses will be built and other specifics. Eventually, consideration is given to such minor details as the plumbing to be installed in the individual houses. Once a detailed schematic or logic diagram of the device has been made, or the schematic data has been set forth in a higher level representation (e.g., described symbolically), a decision is made on the geometrical placement and interconnection of the components. Today, this layout is commonly done with the aid of complex computer programs.22/ Although there is much research under way to automate completely the design effort, a layout designer using a computer-aided design system is still required to make choices concerning particular layout and interconnection patterns. During the layout process, the design may be displayed on a CRT screen or reproduced using a plotter for verification purposes. After the layout of the microelectronic circuit is finalized, it is usually fixed in a pattern generation tape that is sent for use in the production of the particular device. Although the layout and interconnection patterns encoded in the tape may be "written" directly on a silicon wafer using electron-beam technology, the transfer of the patterns by a photolithographic process using a series of masks is now industry standard. B. Chip Design and Manufacture A More Detailed Account Although the steps in developing microelectronic circuits or other devices in semiconductor material may vary widely, it is possible to group them in four general stages for discussion purposes. 22. For a concise summary of advances in computer-aided design, see M. 17 1. Electrical behavior. The process of producing a semiconduc tor chip product usually starts with a general description of the electrical function to be performed by a particular device. An outline or "floor plan" of the device is sometimes made. 2. Description of circuits. On the basis of the abstract description of the behavior of the device to be formed, an engineer sets forth the electrical specifications of the device in increasing detail. The schematic data may be set forth in a logic diagram, or the data may be described in a higher level representation. 3. Layout. Just as there are many different circuits that may be selected to perform a particular electrical function, there are also different ways to arrange the components in semiconductor material. The focus of the semiconductor chip protection legislation appears to be the determinations of the layout designer, either alone or with the assistance of a logic designer or process expert, with respect to the structural placement of the components of a device and the routing paths to interconnect these components. The layout and interconnection patterns generated by the layout designer would be deemed "mask works" under the proposals in H.R. 1028. The eventual commercial success of a semiconductor chip product often depends on the ability of the layout designer to achieve an optimized layout configuration. In attempting to provide the highest functional component density in order to reduce the chip area per circuit function, the layout designer is subject to certain layout constraints. The layout designer, however, has powerful tools to help in producing the geometrical layout patterns for each layer of a microelectronic circuit or other device. In recent years, computer-aided design |