No C 360/14 Official Journal of the European Communities 31. 12. 85 
II 
(Preparatory Acts) 
COMMISSION 
Proposal for a Council Directive on the legal protection of original topographies of 
semiconductor products 
COM(85) 775 final 
(85/C 360/02) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community and in particular Articles 100 
and 113 thereof, 
Having regard to the proposal from the Commission, 
Having regard to the opinion of the European Parliament, 
Having regard to the opinion of the Economic and Social 
Committee, 
Whereas the functions of semiconductor products depend 
in large part on the topographies of such products and 
whereas the development of such topographies requires the 
investment of considerable resources, human, technical 
and financial, white topographies of such products can be 
copied at a fraction of the cost needed to develop them 
independently; 
Whereas semiconductor products are playing an increas­
ingly important role in a broad range of industries and 
semiconductor technology can accordingly be considered 
as being of fundamental importance for the Community's 
industrial development; 
Whereas topographies of semiconductor products are at 
present not clearly protected in all Member States by 
existing legislation and such protection, where it exists, has 
different attributes; 
Whereas certain existing differences in the legal protection 
of semiconductor products offered by the laws of the 
Member States have direct and negative effects on the 
functioning of the common market as regards semiconduc­
tor products and such differences could well become 
greater as Member States introduce new legislation on this 
subject; 
Whereas existing differences having such effects need to be 
removed and new ones prevented from arising, while 
differences not adversely affecting the functioning of the 
common market to a substantial degree need not be 
removed or prevented from arising: 
Whereas the export to non-member States of semiconduc­
tor products manufactured within the Community will 
depend in large part on those States extending substantially 
on the basis of reciprocity adequate legal protection to the 
topographies of such products; therefore to safeguard such exports a Community measure is needed to provide such 
legal protection in accordance with developing inter­
national standards; whereas the basis on which topo­
graphies of semiconductor products developed by persons 
outside the Community are to be protected within the 
Community should accordingly be such as to favour the 
extension of legal protection in those countries to 
topographies of semiconductor products developed by 
nationals and residents of the Member States; and whereas 
this basis is thus a matter of significance to the Community 
as a whole and, if necessary, should be decided at 
Community level; 
Whereas the Community's legal framework on the 
protection of original topographies of semiconductor 
products can accordingly in the first instance be limited to 
certain basic principles by provisions specifying who and 
what should be protected, the exclusive rights on which 
protected persons should be able to rely to authorize or 
prohibit certain acts and for how long the protection 
should last; 
Whereas other matters can for the time being be decided in 
accordance with national law, in particular, whether 
Member States rely on the provisions of copyright laws or 
on provisions enacted specifically for the purpose of 
protecting topographies of semiconductor products or on a 
combination of these provisions, whether registration or 
deposit is required as a condition for the subsistence of 
protection and, with the exception of a provision 
applicable to innocent infringers, whether and on what 
conditions third parties may obtain licences in respect of 
protected topographies; 
Whereas, however, this flexibility in the Community 
framework for the time being needs to be balanced by 
provisions designed to prevent new obstacles arising to 
trade between Member States in semiconductor products, 
in particular as regards marking of such products and, as 
soon as circumstances permit, a common registration and 
deposit procedure in the event that more than one Member 
State makes the subsistence of protection conditional on 
the fulfilment of such conditions; 
31.12.^ Cofficial]ournal of the European Communities ^oC^O^ 
whereas protection of original topographies of semi 
conductor products under copyright laws or some specific 
form of protection should he without prejudice to the 
application in appropriate cases of some other forms of 
protections 
whereas further measures designed to facilitate reliance on 
laws granting protection to original topographies of 
semiconductor products in the Community can he 
considered at a later staged while the application of 
common basic principles by all member states in 
accordance with theprovisionsofthisUirective is an urgent 
necessity^ 
^A^^oo^r^or^5nt^ooTtv^ 
o^A^r^m 
definitions 
Eor the purposes of this tOirective^ 
^ a ^^^o^^ror ^ro^^r means the final or an 
intermediate form of any products 
^ consisting ofabody of material which mcludesa 
layer of semiconducting matenal^and 
^ having one or more other layers composed of 
conducting^ insulating or semiconducting materials 
the layers being arranged in accordance withapreD 
determined three-dimensional pattern^and 
^ intended to performs exclusively or in part^ an 
electronic function. 
^ the ^o^r^^vofasemiconductor product meansa 
series of related images^ however fixed or encoded^ 
^ representing the three-dimensional pattern of the 
layers of which a semiconductor product is 
composed^ and 
^ in which series^ each image has the pattern or part 
of the pattern of the surface of the semiconductor 
product in its final or any intermediate form, 
^ ^o^^^^^ ^^o^^r^o^ of the topography of a 
semiconductor product means to mal^e available to the 
public by sale^ rentals leasing or any other method of 
commercial distribution the topography or a semiD 
conductor product manufactured by using the topogD 
raphy. 
protection of original topographies of semiconductor 
products 
Arr^^2 
1. I^he member states shall protect the topographies of 
semiconductorproductsbyconferrmgexclusive rights in 
accordance with the provisions of this fOirective 2. Exclusive rights may be conferred bytheprovisions of 
national copyright laws^ by provisions enacted for the 
specific purpose of protecting the topographies of semiD 
conductor pi^oducts^ or by a combination of these 
provisions, 
3, Idowever^ the topography of a semiconductor 
product shall not be protected unless it satisfies the 
condition that it be original in the sense that it is the result 
of its creators own intellectual effort, ^here the 
topography of a semiconductor product consists of 
elements that are commonplace in the semiconductor 
industry^ it shall not be considered original unless the 
combination of such elementsm^^^^^^holem^ original 
and not commonplace, 
A^r^A^ 
1, Protectionshallapplyatleast in favour of natural 
persons who are the creators oftheongmaltopographiesof 
semiconductor products and who are nationals of and 
resident ma^iember^tate and their successors in title. 
2, tdowever^ where member states provide for regist^ 
ration in accordance with Article4mhey may alternatively 
provide that protection shall apply at least to persons 
registering original topographies who are either nationals 
and residents ofa^iember^tate or companies and firms 
within the meaning of Article ^^ of thei^reaty, 
3, member states shall extend protection to persons 
who do not qualify for protection under paragraphslor2 
in accordance with decisions to be adopted by the council 
acting by qualified majority on a proposal from the 
Commission, 
4, Paragraphsl^2and3shall be without prejudice to 
member ^tates^ obligations under international agreed 
ments, 
A^^A^ 
1, .Pl^^irin^^t^rn^nr^^o^ 
no longer apply to the topography of a semiconductor 
product unless ithas been registered withapubhc authority 
within two years of its first commercial exploitation, 
member states may require in addition to such registration 
that material identifying^descnbingorexemplifying the 
topography or any combination thereofhas been deposited 
withapubhc authority, 
2, member states may subject registration and deposit 
in accordance with paragraphlto the payment of fees not 
exceeding their administrative costs, 
3, Conditionsprescnbingthefulfilmentof additional 
formalities shall not be admitted, 
Arr^^^ 
t, ^fhe exclusive rights referred to in Article2 shall 
include the rights to authorise any of the following acts, 
^ reproduction of the topographies in whole or in part^ 
^ the sale^ rental or leasing^ ortheoffenngforsale^ rental 
or leasing^ or any other method of commercial 
No C 360/16 Official Journal of the European Communities 31. 12. 85 
distribution, or the importation of the topographies or 
of semiconductor products manufactured by using the 
topographies. 
2. The exclusive right to authorize reproduction of the 
topographies shall not apply to reproduction for the 
purpose of analyzing, evaluating or teaching the concepts, 
processes, systems or techniques embodied in the topog­
raphy or the topography itself. 
3. The exclusive rights to authorize the acts specified in 
paragraph 1 shall not extend to any such act in relation to 
an original topography created on the basis of an analysis 
and evaluation of another topography carried out in 
conformity with paragraph 2. 
4. The exclusive right to authorize the acts specified in 
paragraph 1(b) shall not apply to any such act: 
(a) committed after the topography or the semiconductor 
product has been put on the market in a Member State 
by the person entitled to authorize its marketing or 
with his consent; or 
(b) committed by a person who has purchased a semi­
conductor product without reasonable grounds to 
believe that its manufacture infringed the exclusive 
right specified in paragraph 1(a). 
5. Where paragraph 4(b) applies, the Member States 
may subject the acts specified in paragraph 1(b) to the 
payment of royalties. 
6. The exclusive right to authorize importation of a 
semiconductor product manufactured by using a protected 
topography shall not extend to products which are part of a 
land vehicle, vessel, aircraft or spacecraft which enters 
temporarily or accidentally the territory, waters or airspace 
of a Member State. 
Article 6 
1. The exclusive rights to which reference is made in 
Article 2 shall come to an end on a date 10 years from the 
date on which the topography is first commercially 
exploited or, where registration is a condition for the 
subsistence of protection, from the date on which the 
topography is first commercially exploited or the date on 
which it is registered, whichever is the later. 
2. The exclusive rights shall come to an end not later 
than 15 years from the date on which the topography is first 
fixed or encoded. This provision shall be without prejudice to rights conferred by the Member States in fulfilment of 
their obligations under the Berne Convention for the 
Protection of Literary and Artistic Works and the Universal 
Copyright Convention and to corresponding rights 
conferred on a Member State's nationals or persons 
resident on its territory. 
Article 7 
The protection granted to the topographies of semiconduc­
tor products in accordance with Article 2 shall not extend 
to any concept, process, system or technique embodied in 
the topography other than the topography itself. 
Article 8 
Where the legislation of Member States provides that 
semiconductor products manufactured using protected 
topographies may be distinctively marked, the mark to be 
used shall be a capital T in a circle as follows: (?) 
CHAPTER 3 
Continued application of other legal provisions 
Article 9 
The provision of this Directive are without prejudice to any 
legal provisions protecting the topographies of semi­
conductor products other than those referred to in 
Article 2(2). 
CHAPTER 4 
Final provisions 
Article 10 
1. Member States shall bring into force the laws, 
regulations or administrative provisions needed in order to 
comply with this Directive by 1 October 1987. 
2. Member States shall ensure that they communicate to 
the Commission the texts of the main provisions of national 
law which they adopt in the field covered by this Directive. 
Article 11 
This Directive is addressed to the Member States.