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8905. Exclusive rights in mask works
The owner of a mask work provided protection under this chapter has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the mask work by optical, electronic, or any other means;
(2) to import or distribute a semiconductor chip product in which the mask work is embodied; and
(3) to induce or knowingly to cause another person to do any of the acts described in para
graphs (1) and (2). (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3350.)
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 906, 910 of this title.
license all or less than all of those rights, by any written instrument signed by such owner or a duly authorized agent of the owner. Such rights may be transferred or licensed by operation of law, may be bequeathed by will, and may pass as personal property by the applicable laws of intestate succession.
(c)(1) Any document pertaining to a mask work may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. The Register of Copyrights shall, upon receipt of the document and the fee specified pursuant to section 908(d), record the document and return it with a certificate of recordation. The recordation of any transfer or license under this paragraph gives all persons constructive notice of the facts stated in the recorded document concerning the transfer or license.
(2) In any case in which conflicting transfers of the exclusive rights in a mask work are made, the transfer first executed shall be void as against a subsequent transfer which is made for a valuable consideration and without notice of the first transfer, unless the first transfer is recorded in accordance with paragraph (1) within three months after the date on which it is executed, but in no case later than the day before the date of such subsequent transfer.
(d) Mask works prepared by an officer or employee of the United States Government as part of that person's official duties are not protected under this chapter, but the United States Government is not precluded from receiving and holding exclusive rights in mask works transferred to the Government under subsection (b). (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3349.)
8 906. Limitation on exclusive rights: reverse engi
neering; first sale (a) Notwithstanding the provisions of section 905, it is not an infringement of the exclusive rights of the owner of a mask work for
(1) a person to reproduce the mask work solely for the purpose of teaching, analyzing, or evaluating the concepts or techniques embodied in the mask work or the circuitry, logic flow, or organization of components used in the mask work; or
(2) a person who performs the analysis or evaluation described in paragraph (1) to incorporate the results of such conduct in an original mask work which is made to be distributed.
(b) Notwithstanding the provisions of section 905(2), the owner of a particular semiconductor chip product made by the owner of the mask work, or by any person authorized by the owner of the mask work, may import, distribute, or otherwise dispose of or use, but not reproduce, that particular semiconductor chip product without the authority of the owner of the mask work. (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3350.)
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 901 of this title.
8 904. Duration of protection
(a) The protection provided for a mask work under this chapter shall commence on the date on which the mask work is registered under section 908, or the date on which the mask work is first commercially exploited anywhere in the world, whichever occurs first.
(b) Subject to subsection (c) and the provi. sions of this chapter, the protection provided under this chapter to a mask work shall end ten years after the date on which such protection commences under subsection (a).
(c) All terms of protection provided in this section shall run to the end of the calendar year in which they would otherwise expire. (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3349.)
8 907. Limitation on exclusive rights: innocent in
fringement (a) Notwithstanding any other provision of this chapter, an innocent purchaser of an infringing semiconductor chip product
(1) shall incur no liability under this chapter with respect to the importation or distribution of units of the infringing semiconductor chip product that occurs before the innocent purchaser has notice of protection with respect to the mask work embodied in the semiconductor chip product; and
(2) shall be liable only for a reasonable roy. alty on each unit of the infringing semiconductor chip product that the innocent purchaser imports or distributes after having notice of protection with respect to the mask work embodied in the semiconductor chip product.
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 910, 914 of this title.
(b) The amount of the royalty referred to in (e) If the Register of Copyrights, after examsubsection (a)(2) shall be determined by the ining an application for registration, detercourt in a civil action for infringement unless mines, in accordance with the provisions of this the parties resolve the issue by voluntary nego chapter, that the application relates to a mask tiation, mediation, or binding arbitration.
work which is entitled to protection under this (c) The immunity of an innocent purchaser chapter, then the Register shall register the from liability referred to in subsection (a)(1) claim of protection and issue to the applicant a and the limitation of remedies with respect to certificate of registration of the claim of protecan innocent purchaser referred to in subsection tion under the seal of the Copyright Office. (a)(2) shall extend to any person who directly The effective date of registration of a claim of or indirectly purchases an infringing semi protection shall be the date on which an appliconductor chip product from an innocent pur
cation, deposit of identifying material, and fee, chaser.
which are determined by the Register of Copy(d) The provisions of subsections (a), (b), and
rights or by a court of competent jurisdiction to (c) apply only with respect to those units of an
be acceptable for registration of the claim, have infringing semiconductor chip product that an
all been received in the Copyright Office. innocent purchaser purchased before having (f) In any action for infringement under this notice of protection with respect to the mask
chapter, the certificate of registration of a work embodied in the semiconductor chip prod
mask work shall constitute prima facie evidence uct.
(1) of the facts stated in the certificate, and (2)
that the applicant issued the certificate has (Added Pub. L. 98-620, title III, § 302, Nov. 8, met the requirements of this chapter, and the 1984, 98 Stat. 3350.)
regulations issued under this chapter, with reSECTION REFERRED TO IN OTHER SECTIONS
spect to the registration of claims.
(g) Any applicant for registration under this This section is referred to in section 913 of this title. section who is dissatisfied with the refusal of
the Register of Copyrights to issue a certificate 8 908. Registration of claims of protection
of registration under this section may seek judi(a) The owner of a mask work may apply to
cial review of that refusal by bringing an action the Register of Copyrights for registration of a
for such review in an appropriate United States claim of protection in a mask work. Protection
district court not later than sixty days after the of a mask work under this chapter shall termi.
refusal. The provisions of chapter 7 of title 5 nate if application for registration of a claim of
shall apply to such judicial review. The failure protection in the mask work is not made as pro
of the Register of Copyrights to issue a certifivided in this chapter within two years after the
cate of registration within four months after an date on which the mask work is first commer application for registration is filed shall be cially exploited anywhere in the world.
deemed to be a refusal to issue a certificate of (b) The Register of Copyrights shall be re
registration for purposes of this subsection and sponsible for all administrative functions and
section 910(b)(2), except that, upon a showing duties under this chapter. Except for section
of good cause, the district court may shorten 708, the provisions of chapter 7 of this title re
such four-month period. lating to the general responsibilities, organiza (Added Pub. L. 98-620, title III, 8 302, Nov. 8, tion, regulatory authority, actions, records, and 1984, 98 Stat. 3351.) publications of the Copyright Office shall
SECTION REFERRED TO IN OTHER SECTIONS apply to this chapter, except that the Register of Copyrights may make such changes as may
This section is referred to in sections 902, 903, 904, be necessary in applying those provisions to
910, 912, 913 of this title. this chapter.
8 909. Mask work notice (c) The application for registration of a mask work shall be made on a form prescribed by the (a) The owner of a mask work provided proRegister of Copyrights. Such form may require
tection under this chapter may affix notice to any information regarded by the Register as
the mask work, and to masks and semiconducbearing upon the preparation or identification tor chip products embodying the mask work, in of the mask work, the existence or duration of such manner and location as to give reasonable protection of the mask work under this chap notice of such protection. The Register of ter, or ownership of the mask work. The appli Copyrights shall prescribe by regulation, as excation shall be accompanied by the fee set pur
amples, specific methods of affixation and posisuant to subsection (d) and the identifying ma
tions of notice for purposes of this section, but terial specified pursuant to such subsection.
these specifications shall not be considered ex(d) The Register of Copyrights shall by regu
haustive. The affixation of such notice is not a lation set reasonable fees for the filing of appli
condition of protection under this chapter, but cations to register claims of protection in mask
shall constitute prima facie evidence of notice works under this chapter, and for other services
of protection. relating to the administration of this chapter
(b) The notice referred to in subsection (a) or the rights under this chapter, taking into
shall consist of consideration the cost of providing those serv
(1) the words “mask force”, 2 the sumbol 3 ices, the benefits of a public record, and statu
*M*, or the symbol (M) (the letter M in a tory fee schedules under this title. The Register
circle); and shall also specify the identifying material to be deposited in connection with the claim for reg 2 So in original. Probably should be "mask work". istration.
* So in original. Probably should be "symbol".
(2) the name of the owner or owners of the court, as the case may be, except that the artimask work or an abbreviation by which the cles may be returned to the country of export
name is recognized or is generally known. whenever it is shown to the satisfaction of the (Added Pub. L. 98-620, title III, § 302, Nov. 8,
Secretary of the Treasury that the importer 1984, 98 Stat. 3352.)
had no reasonable grounds for believing that
his or her acts constituted a violation of the 8 910. Enforcement of exclusive rights
(a) Except as otherwise provided in this chap- (Added Pub. L. 98-620, title III, § 302, Nov. 8, ter, any person who violates any of the exclu 1984, 98 Stat. 3352.) sive rights of the owner of a mask work under this chapter, by conduct in or affecting com
REFERENCES IN TEXT merce, shall be liable as an infringer of such The Federal Rules of Civil Procedure, referred to in rights.
subsec. (b)(2), are set out in the Appendix to Title 28, (b)(1) The owner of a mask work protected Judiciary and Judicial Procedure. under this chapter, or the exclusive licensee of Section 337 of the Tariff Act of 1930, referred to in all rights under this chapter with respect to the subsec. (c)(1)(A), is classified to section 1337 of Title mask work, shall, after a certificate of registra
19, Customs Duties. tion of a claim of protection in that mask work
The customs laws, referred to in subsec. (c)(2), are has been issued under section 908, be entitled
classified generally to Title 19. to institute a civil action for any infringement
SECTION REFERRED TO IN OTHER SECTIONS with respect to the mask work which is committed after the commencement of protection of This section is referred to in sections 908, 911, 913 of the mask work under section 904(a).
this title. (2) In any case in which an application for
8 911. Civil actions registration of a claim of protection in a mask work and the required deposit of identifying (a) Any court having jurisdiction of a civil material and fee have been received in the action arising under this chapter may grant Copyright Office in proper form and registra- temporary restraining orders, preliminary intion of the mask work has been refused, the ap junctions, and permanent injunctions on such plicant is entitled to institute a civil action for terms as the court may deem reasonable to preinfringement under this chapter with respect to vent or restrain infringement of the exclusive the mask work if notice of the action, together rights in a mask work under this chapter. with a copy of the complaint, is served on the
(b) Upon finding an infringer liable, to a Register of Copyrights, in accordance with the
person entitled under section 910(b)(1) to instiFederal Rules of Civil Procedure. The Register tute a civil action, for an infringement of any may, at his or her option, become a party to the exclusive right under this chapter, the court action with respect to the issue of whether the shall award such person actual damages sufclaim of protection is eligible for registration by
fered by the person as a result of the infringeentering an appearance within sixty days after
ment. The court shall also award such person such service, but the failure of the Register to the infringer's profits that are attributable to become a party to the action shall not deprive the infringement and are not taken into acthe court of jurisdiction to determine that count in computing the award of actual damissue.
ages. In establishing the infringer's profits, (c)(1) The Secretary of the Treasury and the such person is required to present proof only of United States Postal Service shall separately or the infringer's gross revenue, and the infringer jointly issue regulations for the enforcement of is required to prove his or her deductible exthe rights set forth in section 905 with respect
penses and the elements of profit attributable to importation. These regulations may require,
to factors other than the mask work. as a condition for the exclusion of articles from
(c) At any time before final judgment is renthe United States, that the person seeking ex
dered, a person entitled to institute a civil clusion take any one or more of the following
action for infringement may elect, instead of actions:
actual damages and profits as provided by sub(A) Obtain a court order enjoining, or an
section (b), an award of statutory damages for order of the International Trade Commission
all infringements involved in the action, with under section 337 of the Tariff Act of 1930 ex
respect to any one mask work for which any cluding, importation of the articles.
one infringer is liable individually, or for which (B) Furnish proof that the mask work in
any two or more infringers are liable jointly volved is protected under this chapter and
and severally, in an amount not more than that the importation of the articles would in
$250,000 as the court considers just. fringe the rights in the mask work under this
(d) An action for infringement under this chapter.
chapter shall be barred unless the action is (C) Post a surety bond for any injury that
commenced within three years after the claim may result if the detention or exclusion of
accrues. the articles proves to be unjustified.
(e)(1) At any time while an action for in(2) Articles imported in violation of the rights fringement of the exclusive rights in a mask set forth in section 905 are subject to seizure work under this chapter is pending, the court and forfeiture in the same manner as property may order the impounding, on such terms as it imported in violation of the customs laws. Any may deem reasonable, of all semiconductor chip such forfeited articles shall be destroyed as die products, and any drawings, tapes, masks, or rected by the Secretary of the Treasury or the other products by means of which such prod
ucts may be reproduced, that are claimed to have been made, imported, or used in violation of those exclusive rights. Insofar as practicable, applications for orders under this paragraph shall be heard and determined in the same manner as an application for a temporary restraining order or preliminary injunction.
(2) As part of a final judgment or decree, the court may order the destruction or other disposition of any infringing semiconductor chip products, and any masks, tapes, or other articles by means of which such products may be reproduced.
(f) In any civil action arising under this chapter, the court in its discretion may allow the recovery of full costs, including reasonable attorneys' fees, to the prevailing party. (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3353.)
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 913 of this title.
curred before the date of the enactment of this chapter, except as provided in subsection (d).
(c) Subject to subsection (a), the provisions of this chapter apply to all mask works that are first commercially exploited or are registered under this chapter, or both, on or after the date of the enactment of this chapter.
(d)(1) Subject to subsection (a), protection is available under this chapter to any mask work that was first commercially exploited on or after July 1, 1983, and before the date of the enactment of this chapter, if a claim of protection in the mask work is registered in the Copyright Office before July 1, 1985, under section 908.
(2) In the case of any mask work described in paragraph (1) that is provided pr ction under this chapter, infringing semiconductor chip product units manufactured before the date of the enactment of this chapter may, without liability under sections 910 and 911, be imported into or distributed in the United States, or both, until two years after the date of registration of the mask work under section 908, but only if the importer or distributor, as the case may be, first pays or offers to pay the reasonable royalty referred to in section 907(a)(2) to the mask work owner, on all such units imported or distributed, or both, after the date of the enactment of this chapter.
(3) In the event that a person imports or distributes infringing semiconductor chip product units described in paragraph (2) of this subsection without first paying or offering to pay the reasonable royalty specified in such paragraph, or if the person refuses or fails to make such payment, the mask work owner shall be entitled to the relief provided in sections 910 and 911. (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3354.)
§ 912. Relation to other laws
(a) Nothing in this chapter shall affect any right or remedy held by any person under chapters 1 through 8 of this title, or under title 35.
(b) Except as provided in section 908(b) of this title, references to "this title" or "title 17" in chapters 1 through 8 of this title shall be deemed not to apply to this chapter.
(c) The provisions of this chapter shall preempt the laws of any State to the extent those laws provide any rights or remedies with respect to a mask work which are equivalent to those rights or remedies provided by this chapter, except that such preemption shall be effective only with respect to actions filed on or after January 1, 1986.
(d) Notwithstanding subsection (c), nothing in this chapter shall detract from any rights of a mask work owner, whether under Federal law (exclusive of this chapter) or under the common law or the statutes of a State, heretofore or hereafter declared or enacted, with respect to any mask work first commercially exploited before July 1, 1983. (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3354, and amended Pub. L. 100-702, title X, $ 1020(b), Nov. 19, 1988, 102 Stat. 4672.)
REFERENCES IN TEXT
The date of enactment of this chapter, referred to in text, is the date of enactment of Pub. L. 98-620, which was approved Nov. 8, 1984.
AMENDMENTS 1988–Subsecs. (d), (e). Pub. L. 100-702 redesignated subsec. (e) as (d) and struck out former subsec. (d) which read as follows: "The provisions of sections 1338, 1400(a), and 1498(b) and (c) of title 28 shall apply with respect to exclusive rights in mask works under this chapter."
8 914. International transitional provisions
(a) Notwithstanding the conditions set forth in subparagraphs (A) and (C) of section 902(a)(1) with respect to the availability of protection under this chapter to nationals, domiciliaries, and sovereign authorities of a foreign nation, the Secretary of Commerce may, upon the petition of any person, or upon the Secretary's own motion, issue an order extending protection under this chapter to such foreign nationals, domiciliaries, and sovereign authorities if the Secretary finds
(1) that the foreign nation is making good faith efforts and reasonable progress toward
(A) entering into a treaty described in section 902(a)(1)(A); or
(B) enacting legislation that would be in compliance with subparagraph (A) or (B) of section 902(a)(2); and
(2) that the nationals, domiciliaries, and sovereign authorities of the foreign nation,
8 913. Transitional provisions
(a) No application for registration under section 908 may be filed, and no civil action under section 910 or other enforcement proceeding under this chapter may be instituted, until sixty days after the date of the enactment of this chapter.
(b) No monetary relief under section 911 may be granted with respect to any conduct that oc
this chapter to mask works owned by nationals, domiciliaries, or sovereign authorities of foreign nations as the Secretary, in consultation with the Register of Copyrights, considers would promote the purposes of this chapter and international comity with respect to mask work protection. Not later than July 1, 1990, the Secretary of Commerce, in consultation with the Register of Copyrights, shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report updating the matters contained in the report transmitted under the preceding sentence. (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3355, and amended Pub. L. 100-159, $$ 2, 4, Nov. 9, 1987, 101 Stat. 899, 900.)
REFERENCES IN TEXT The date of enactment of this chapter, referred to in subsecs. (e) and (f)(2), is the date of enactment of Pub. L. 98-620, which was approved Nov. 8, 1984.
and persons controlled by them, are not engaged in the misappropriation, or unauthorized distribution or commercial exploitation, of mask works; and
(3) that issuing the order would promote the purposes of this chapter and international comity with respect to the protection of mask works.
(b) While an order under subsection (a) is in effect with respect to a foreign nation, no application for registration of a claim for protection in a mask work under this chapter may be denied solely because the owner of the mask work is a national, domiciliary, or sovereign authority of that foreign nation, or solely because the mask work was first commercially exploited in that foreign nation.
(c) Any order issued by the Secretary of Commerce under subsection (a) shall be effective for such period as the Secretary designates in the order, except that no such order may be effective after the date on which the authority of the Secretary of Commerce terminates under subsection (e). The effective date of any such order shall also be designated in the order. In the case of an order issued upon the petition of a person, such effective date may be no earlier than the date on which the Secretary receives such petition.
(d)(1) Any order issued under this section shall terminate if
(A) the Secretary of Commerce finds that any of the conditions set forth in paragraphs (1), (2), and (3) of subsection (a) no longer exist; or
(B) mask works of nationals, domiciliaries, and sovereign authorities of that foreign nation or mask works first commercially exploited in that foreign nation become eligible for protection under subparagraph (A) or (C) of section 902(a)(1).
(2) Upon the termination or expiration of an order issued under this section, registrations of claims of protection in mask works made pursuant to that order shall remain valid for the period specified in section 904.
(e) The authority of the Secretary of Commerce under this section shall commence on the date of the enactment of this chapter, and shall terminate on July 1, 1991.
(f)(1) The Secretary of Commerce shall promptly notify the Register of Copyrights and the Committees on the Judiciary of the Senate and the House of Representatives of the issuance or termination of any order under this section, together with a statement of the reasons for such action. The Secretary shall also publish such notification and statement of reasons in the Federal Register.
(2) Two years after the date of the enactment of this chapter, the Secretary of Commerce, in consultation with the Register of Copyrights, shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report on the actions taken under this section and on the current status of international recognition of mask work protection. The report shall include such recommendations for modifications of the protection accorded under
AMENDMENTS 1987--Subsec. (e). Pub. L. 100-159, § 2, substituted “on July 1, 1991" for “three years after such date of enactment".
Subsec. (f)(2). Pub. L. 100-159, 84, which directed the amendment of subsec. (f) by inserting at end "Not later than July 1, 1990, the Secretary of Commerce, in consultation with the Register of Copyrights, shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report updating the matters contained in the report transmitted under the preceding sentence.", was executed by inserting new language at end of par. (2) of subsec. (f) as the probable intent of Congress.
FINDINGS AND PURPOSES Section 1 of Pub. L. 100-159 provided that: “(a) FINDINGS.—The Congress finds that
“(1) section 914 of title 17, United States Code, which authorizes the Secretary of Commerce to issue orders extending interim protection under chapter 9 of title 17, United States Code, to mask works fixed in semiconductor chip products and orginating in foreign countries that are making good faith efforts and reasonable progress toward providing protection, by treaty or legislation, to mask works of United States nationals, has resulted in substantial and positive legislative developments in foreign countries regarding protection of mask works;
“(2) the Secretary of Commerce has determined that most of the industrialized countries of the world are eligible for orders affording interim protection under section 914 of title 17, United States Code;
"(3) the World Intellectual Property Organization has commenced meetings to draft an international convention regarding the protection of integrated electronic circuits;
“(4) these bilateral and multilateral developments are encouraging steps toward improving international protection of mask works in a consistent and harmonious manner; and
“(5) it is inherent in section 902 of title 17, United States Code, that the President has the authority to revise, suspend, or revoke, as well as issue, proclamations extending mask work protection to nationals, domiciliaries, and sovereign authorities of other countries, if conditions warrant.
“(b) PURPOSES.—The purposes of this Act (amending sections 902 and 914 of this title) are