1204.2 Originality
A mask work must be original to be protectable. The House Report on the Semiconductor Chip Protection Act of 1984 provides that a mask work is "original" if it is the independent creation of an author and was not copied from another source. H.R. Rep. No. 98-781, at 17 (1984). The mask work cannot consist solely of "designs that are staple, commonplace, or familiar in the semiconductor industry, or variations of such designs, combined in a way that, considered as a whole, is not original." 17 U.S.C. § 902(b)(2).
1204.3 Protectable Expression
A mask work must contain protectable expression. Protectable expression in a mask work extends to the three-dimensional images or patterns formed on or in the layers of metallic, insulating, or semiconductor material and fixed in a semiconductor chip product, i.e., the "topography" of the "chip."
Although these images or patterns are purely functional features, they are nevertheless protected, provided that a mask work is neither dictated by a particular electronic function nor results from one of only a few available design choices that will accomplish that function.
Protection for mask works does not "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery" associated with a mask work, "regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. § 902(c).
1204.4 Eligibility Based on Nationality of Owner or Nation of First Commercial Exploitation
Any original mask work fixed in a semiconductor chip product by or under the authority of the mask work owner is eligible for protection if it meets one of the following criteria:
1. On the date the mask work is registered with the U.S. Copyright Office or the date the mask work is first commercially exploited anywhere in the world, whichever occurs first, the owner of the mask work is:
• A national or domiciliary of the United States; or
• A national, domiciliary, or sovereign authority of a foreign nation that is a party with the United States to a treaty affording protection to mask works; or
• A stateless person;
2. The mask work is first commercially exploited in the United States; or
3. The mask work comes within the scope of a Presidential proclamation extending protection to mask works of nationals and domiciliaries of a foreign country and to works first commercially exploited in that country, on the basis of a finding that mask works protected under Chapter 9 of the U.S. Copyright Act are also protected
Chapter 1200 : 6
12/22/2014
