CELEX: 51985PC0775
Language: en
Date: 1985-12-23
Title: PROPOSAL FOR A COUNCIL DIRECTIVE ON THE LEGAL PROTECTION OF ORIGINAL TOPOGRAPHIES OF SEMICONDUCTOR PRODUCTS

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