The Semiconductor Chip Protection Act of 1984 (or SCPA) is an act of the

US Congress The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washin ...

that makes the layouts of

integrated circuit An integrated circuit or monolithic integrated circuit (also referred to as an IC, a chip, or a microchip) is a set of electronic circuits on one small flat piece (or "chip") of semiconductor material, usually silicon. Large numbers of tiny ...

s legally protected upon registration, and hence illegal to copy without permission. It is an integrated circuit layout design protection law.

Background

Prior to 1984, it was not necessarily illegal to produce a competing chip with an identical layout. As the legislative history for the SCPA explained,

patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...

and

copyright protection A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...

for chip layouts, chip ''topographies'', was largely unavailable. This led to considerable complaint by American chip manufacturers—notably,

Intel Intel Corporation is an American multinational corporation and technology company headquartered in Santa Clara, California. It is the world's largest semiconductor chip manufacturer by revenue, and is one of the developers of the x86 ser ...

, which, along with the

Semiconductor Industry Association The Semiconductor Industry Association (SIA) is a trade association and lobbying group founded in 1977 that represents the United States semiconductor industry. It is located in Washington, D.C. One of the main achievements of the SIA was the ...

(SIA), took the lead in seeking remedial legislation—against what they termed "chip piracy." During the hearings that led to enactment of the SCPA, chip industry representatives asserted that a pirate could copy a chip design for $100,000 in 3 to 5 months that had cost its original manufacturer upwards of $1 million to design.

Enactment of US and other national legislation

In 1984 the United States enacted the Semiconductor Chip Protection Act of 1984 (the ''SCPA'') to protect the topography of semiconductor chips. The SCPA is found in title 17, U.S. Code, sections 901-914
17 U.S.C. §§ 901-914
. Japan and European Community (EC) countries soon followed suit and enacted their own, similar laws protecting the topography of semiconductor chips. Chip topographies are also protected by

TRIPS The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...

, an international treaty.

How the SCPA operates

''Sui generis'' law

Although the U.S. SCPA is codified in title 17 (copyrights), the SCPA is not a

copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...

law. Rather, it is a ''

sui generis ''Sui generis'' ( , ) is a Latin phrase that means "of its/their own kind", "in a class by itself", therefore "unique". A number of disciplines use the term to refer to unique entities. These include: * Biology, for species that do not fit in ...

'' law resembling a

utility model A utility model is a patent-like intellectual property right to protect inventions. This type of right is available in many countries but, notably, not in the United States, United Kingdom or Canada. Although a utility model is similar to a patent ...

law or ''

Gebrauchsmuster In German and Austrian patent laws, the ''Gebrauchsmuster'' (GebrM), also known as German utility model or Austrian utility model, is a patent-like, intellectual property right protecting inventions. The Gebrauchsmuster is slightly different from ...

''. It has some aspects of copyright law, some aspects of patent law, and in some ways, it is completely different from either. From ''Brooktree'', ¶ 23:

The Semiconductor Chip Protection Act of 1984 was an innovative solution to this new problem of technology-based industry. While some copyright principles underlie the law, as do some attributes of patent law, the Act was uniquely adapted to semiconductor mask works, in order to achieve appropriate protection for original designs while meeting the competitive needs of the industry and serving the public interest.

In general, the chip topography laws of other nations are also ''sui generis'' laws. Nevertheless, copyright and patent

case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...

illuminate many aspects of the SCPA and its interpretation.

Acquisition of protection by registration

Chip protection is acquired under the SCPA by filing with the US Copyright Office an application for "mask work" registration under the SCPA, together with a filing fee. The application must be accompanied by identifying material, such as pictorial representations of the IC layers so that in the event of infringement litigation, it can be determined what the registration covers. Protection continues for ten years from the date of registration.

Mask works

The SCPA repeatedly refers to "mask works." The term is a relic of the original form of the bill that became the SCPA and was passed in the Senate as an amendment to the Copyright Act. The term mask work is parallel to and consistent with the terminology of the 1976 Copyright Act, which introduced the concept of "literary works," "pictorial works," "audiovisual works," and the like and protected physical embodiments of such works, such as books, paintings, video game cassettes, and the like against unauthorized copying and distribution. The terminology became unnecessary when the House of Representatives insisted on the substitution of a ''sui generis'' bill, but the SCPA as enacted still continued its use. The term "mask work" is not limited to actual masks used in chip manufacture but is defined broadly in the SCPA to include the topographic creation embodied in the masks and chips. Moreover, the SCPA protects any physical embodiment of a mask work.

Enforcement

The owner of mask work rights may pursue an alleged infringer ("chip pirate") by bringing an action for mask work infringement in federal district court. The remedies available correspond generally to those of copyright law and patent law.

Functionality unprotected

The SCPA does not protect functional aspects of chip designs, which is reserved to

patent law A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...

. Although EPROM and other memory chips topographies are protectable under the SCPA, such protection does not extend to the information stored in chips, such as computer programs. Such information is protected, if at all, only by

copyright law A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...

Reverse engineering allowed

The SCPA permits competitive emulation of a chip by means of

reverse engineering Reverse engineering (also known as backwards engineering or back engineering) is a process or method through which one attempts to understand through deductive reasoning how a previously made device, process, system, or piece of software accompli ...

. The ordinary test for illegal copying (mask work infringement) is the " substantial similarity" test of copyright law, but when the defense of reverse engineering is involved and supported by probative evidence (usually, the so-called paper trail of design and development work), the similarity must be greater. Then, the accused chip topography must be substantially identical (truly copied by rote, so-called slavish copying) rather than just substantially similar for the defendant to be liable for infringement.See Explanatory Memorandum, Mathias-Leahy Amendments to S. 1201, 130 Cong. Rec. S12, 91617 (daily ed. Oct. 3, 1984). See als
Brooktree Corp. v. Advanced Micro Devices, Inc.
977 F.2d 1555, 1566-67 (Fed. Cir. 1992); Leo J. Raskind, ''Reverse Engineering, Unfair Competition, and Fair Use'', 70 Minn. L. Rev. 385, 406 (1985). Most world chip topography protection laws provide for a reverse engineering privilege.