CELEX: 51995PC0261
Language: en
Date: 1995-06-13
Title: Proposal for a COUNCIL DECISION on the extension of the legal protection of topographies of semiconductor products to persons from the United States of America

COMMISSION OF THE EUROPEAN COMMUNITIES
                                 Brussels, 13.06.1995
                                 COM(95) 261 final
                  Proposal for a
             COUNCIL DECISION
     on the extension of the legal protection
   of topographies of semiconductor products
  to persons from the United States of America
         (presented by the Commission)
 ---pagebreak---  ---pagebreak---                                      Explanatory memorandum
                             Community and international lesal context
Council Directive 87/54/EEC of 16 December 1986 on the legal protection of
topographies of semiconductor products1 lays down the basic principles which the
Member States must observe for the protection of intellectual property in these
topographies, d provides that protection is to be available to natural persons who are
nationals of, or have their habitual residence in, a Member State, and to companies or
other legal persons which have a real and effective industrial or commercial establishment
in the territory of a Member State. The Directive has been implemented in the legislation
of all the Member States.
Under the terms of the Agreement on tlw European Economic Area, the Directive was
extended to the EFTA countries where this Agreement was in force, and it continues,
accordingly, to form part of the domestic legal order of the EFTA countries where the
Agreement is in force and which have not become members of the European Union.2
A series of Council Decisions, also taken over as binding acts in the Agreement on the
European Economic Area already mentioned, have extended the legal protection of
topographies of semiconductor products introduced by Directive 87/54/EEC to persons
from certain countries and territories outside the Community. This protection has been
granted on the basis of reciprocity to natural and legal persons, in some cases on a
permanent basis and in others on a temporary basis.3
         OJNoL24, 27.1.1987, p. 36.
         Article 65(2) and Annex XVII, point 1 of the Agreement on the European Economic Area.
         Currently in force:
         - Council Decision 90/510/EEC of 9 October 1990 (OJ No L 285, 17.10.1990, p. 29), as
             amended by Decision 93/17/EEC of 21 December 1992 (OJ No L 11, 19.1.1993, p. 22),
             which introduces a system of permanent and unconditional protection in respect of certain
             countries and territories which have granted like protection to the Community
             Member States;
         - Council Decision 94/373/EC of 27 June 1994 (OJ No L 170, 5.7.1994, p. 34) on the
             extension of the legal protcclion of topographies of semiconductor products to persons from
             the United States of America until I July 1995;
         - Council Decision 94/700/EC of 24 October 1994 (OJ No L 284, 1.11.1994, p. 61) on the
             extension of the legal protection of topographies of semiconductor products to persons from
             Canada;
         - Council Decision 94/828/EC of 19 December 1994 (OJ No L 351, 31.12.1994, p. 12) on the
             extension of the legal protection of topographies of semiconductor products to persons from
             certain territories.
                                                                                                         A
 ---pagebreak--- As provided for in Article 4(1) and (2) of Protocol 28 to the Agreement on the European
Economic Area, the Contracting Parties to the Agreement have the right to take decisions
on the extension of the legal protection of topographies of semiconductor products to
persons from any third country or territory which is not a Contracting Party to the
Agreement who do not benefit from the protection afforded by the Agreement. They
may also conclude agreements to this effect.
Where the right to protection for topographies of semiconductor products is extended to a
non-Contracting Party, the Contracting Party concerned must endeavour to ensure that
the non-Contracting Party concerned will grant the right to protection to the other
Contracting Parties to the Agreement under equivalent conditions to those granted to the
Contracting Party concerned.
In addition, the Agreement on trade-related aspects of intellectual property rights, which
forms part of the results of the Uruguay Round of multilateral trade negotiations
embodied in the Marrakesh Final Act of 15 April 1994, requires Member States to grant
protection to topographies of integrated circuits in accordance with the provisions of that
Agreement and those of the Treaty on Intellectual Property in Respect of Integrated
Circuits to which it refers.
This Agreement, together with that establishing the World Trade Organization, entered
into force in the Community on 1 January 1995.4 Countries of the industrialized world
which are Parties to the Agreement establishing the World Trade Organization have one
year following the entry into force of this Agreement to apply its provisions on trade-
related aspects of intellectual property rights.5
Council Decision of 22 December 1994 provides for the extension of the legal protection
of topographies of semiconductor products to persons from a Member of the World Trade
Organization as from 1 January 1996.6 For his part, President Clinton announced on 23
March 1995 that the protection afforded under American law had been extended to all
Members of the World Trade Organization with effect from the same date.7
        Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the
        European Community, as regards matters within its competence, of the agreements reached in the
        Uruguay Round multilateral negotiations (1986-1994), OJ No L 336,23.12.1994.
        Article 65 of the Agreement on trade-related aspects of intellectual property rights.
        OJ No L 349, 3112.1994, p. 201.
        Proclamation 6n%0 to Implement Certain Provisions of Trade Agreements Resulting From the
        Uruguay Round of Multilateral Trade Negotiations, and for Other Purposes.
                                                                                                     2
 ---pagebreak---            Relations between the Community and the United States of America
Council Decision 94/373/EC8 was adopted on 27 June 1994 in order to extend the interim
protection already granted by the Community to persons from the United States of
America by the .:• recessive Decisions which had been adopted from 26 October 1987 to
that date. Decision 94/373/EC extends, from 2 July 1994 to 1 July 1995, the protection
provided for pursuant to Directive 87/54/EEC to natural persons who are nationals of the
United States of America or have their habitual residence in the territory of that country,
and to companies and other legal persons of the United States of America which have a
real and effective industrial or commercial establishment in that country.
In the United States, the order of 26 May 1994, adopted in accordance with Section 914
of the 1984 Semiconductor Chip Protection Act,9 extends until 1 July 1995 the interim
orders granting the legal protection provided for by this legislation to nationals, residents
or sovereign authorities of Member States of the European Community. By Proclamation
6780 of 23 March 1995,'° and in accordance with Section 902(a)(2) of the 1984
Semiconductor Chip Protection Act, President Clinton extended the protection provided
for in this legislation to the Member States of the European Community with effect from 1
July 1995." As specified above, the protection in question is also to be extended to all the
Members of the World Trade Organization as from 1 January 1996.12
                                                 Proposal
In view of the extension, by virtue of the Proclamation of the President of the
United States, of the full and complete protection established by the 1984 Semiconductor
Chip Protection Act to the Member States of the European Community with effect from
1 July 1995, it may be concluded that natural and legal persons from these Member States
will continue to be afforded appropriate protection in the United States of America in
respect of topographies of semiconductor products.
The extension of protection to persons from the Member States of the Community under
the Semiconductor Chip Protection Act is conditional on reciprocal protection being
provided by the Community for persons from the United States.
The criterion of reciprocity, currently used to determine whether to extend protection, can
in future no longer be applied because of the Agreement on trade-related aspects of
intellectual property rights.
8
         Aforementioned Decision, footnote 3.
9
         Chapter 9 of Title 17, United States Code.
10
         Sec footnote 7.
II
         Point 3 of the Proclamation, first sentence.
         Point 3 of the Proclamation, second sentence.
 ---pagebreak--- It is therefore proposed that the Council extend the right to protection under
Directive 87/54/EEC to natural and legal persons from the United States of America with
effect from 2 July 1995 and until Decision 94/824/EC applies, i.e. 1 January 1996. As
from that da!.% protection in accordance with the requirements of the aforementioned
Agreement vM be provided by the United States of America and the Member States of
the European Community to persons from all the Members of the World Trade
Organization in respect of topographies of semiconductor products.
                         Measures to be taken in connection with
                     the A2reement on the European Economic Area
The proposed Council Decision relates, as stated above, to a matter covered by the
Agreement on the European Economic Area. It is aimed at implementing, in respect of
persons from the United States of America, the protective machinery already applied to a
certain number of countries, reflected by the adoption of a series of Council Decisions
already listed as binding acts in Annex XVII, point 3 of this Agreement. Accordingly, the
application of the Decision should be extended to the EFTA countries in which the
Agreement on the European Economic Area is in force and which are not members of the
European Union.
Moreover, in accordance with Article 4(2) of Protocol 28 to the Agreement, the
Community will endeavour to ensure that the US authorities grant the right to protection
to the other Contracting Parties to the Agreement under equivalent conditions as those
granted to them.
 ---pagebreak---                                Proposai for a Council Decision
                                            of.
                           on the extension of the legal protection
                         of topographies of semiconductor products
                       to persons from the United States of America
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 87/54/EEC of 16 December 1986 on the legal
protection of topographies of semiconductor products,1 and in particular Article 3(7)
thereof,
Having regard to the proposal from the Commission,
Whereas the right to legal protection of topographies of semiconductor products in the
Community applies to persons qualifying for protection under Article 3(1) to (5) of
Directive 87/54/EEC;
Whereas this right can be extended by Council decision to persons who do not benefit
from protection under the said provisions;
Whereas the extension of the protection in question should, as far as possible, be decided
by the Community as a whole;
Whereas that protection has, since 7 November 1987, been extended to the United States
of America on the basis of a series of interim Council Decisions,2 the latest of which is
Decision 94/373/EC of 27 June 1994;
Whereas that Decision applies until 1 July 1995;
Whereas the United States of America has appropriate legislation on the protection of
topographies of semiconductor products and the President of that country extended that
protection to persons from the Member States of the European Community as from
 1 July 1995 in his Proclamation of 23 March 1995;
         OJ No L 24, 27.1.1987, p. 36.
         Council Decision 87/532/EEC of 26 October 1987, OJ No L 313, 4.11.1987, p. 22; Council
         Decision 90/511/EEC of 9 October 1990, OJ No L 285, 17.10.1990, p. 31; Council Decision
         93/16/EEC of 21 December 1992, OJ No L 11, 19.1.1993, p. 20; Council Decision 94/4/EC of
         20 December 1993, OJ No L 6, 8.1.1994, p. 23; Council Decision 94/373/EC of 27 June 1994,
         OJNoL170, 5.7.1994, p. 34.
 ---pagebreak--- Whereas the Agreement ca trade-related aspects of intellectual property rights, which
forms part of the results of the Uruguay Round of multilateral lade negotiations
embodied in the Marrakesh Final Act of 15 April 1994, requires Members to grant
protection to ii.iegrated-ctrcuit topographies in compliance with its own provisions and
with those of the Treaty on Intellectual Property in Respect of Integrated Circuits to
which it refers;
Whereas that Agreement, together with that establishing the World Trade Organization
(to which it is annexed), entered into force in the Community on 1 January 1995, whereas
the developed countries which are Members of the Agreement establishing the World
Trade Organization have one year following the entry into force of that Agreement in
which to implement the Agreement on trade-related aspects of intellectual property rights;
Whereas the Community has adopted Council Decision 94/824/EC of 22 December 1994
on the extension of the legal protection of topographies of semiconductor products to
persons from a Member of the World Trade Organization,3 which is to apply from
1 January 1996; whereas the United States of America is a Member of the World Trade
Organization;
Whereas in view of the extension of the protection provided for by United States
legislation to persons from the Member States of the European Community the right to
protection under Directive 87/54/EEC should be extended to natural and legal persons
from the United States of America with effect from 2 July 1995 and until
Decision 94/824/EC applies, i.e. 1 January 1996,
HAS ADOPTED THIS DECISION:
                                            Article 1
Member States shall extend the right to protection under Directive 87/54/EEC as follows:
(a) natural persons who are nationals of the United States of America or who have their
     habitual residence in the territory of the United States of America shall be treated in
     the same way as nationals of a Member State;
(b) companies or other legal persons from the United States of America which have a
     real and effective industrial or commercial establishment in that country shall be
     treated as if they had a real and effective industrial or commercial establishment in the
     territory of a Member State.
         OJ No L 349, 31.12.1994, p. 201.
 ---pagebreak---                                           Article 2
This Decision shall apply from 2 July 1995.
Member Statec shall extend the right to legal protection under this Decision to the persons
referred to in Article 1 until 1 January 1996.
Any exclusive rights acquired under Decisions 87/532/EEC, 90/511/EEC, 93/16/EEC,
94/4/EC, 94/373/EC or under this Decision shall continue to produce their effect for the
period laid down under Directive 87/54/EEC.
                                          Article 3
This Decision is addressed to the Member States.
Done at Brussels,
                                                                  For the Council
                                                                  The President
 ---pagebreak---                                                                     ISSN 0254-1475
                                                             COM(95) 261 final
                                              DOCUMENTS
EN                                                                    06 U     02
                                     Catalogue number : CB-CO-95-282-EN-C
                                                              ISBN 92-77-90338-4
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