Situation pre-TRIPS. The protection of layout designs of integrated circuits as a specific subject matter was initiated in the United States in 1984, with the approval of the Semiconduc- tor Chip Protection Act (“SCPA”). The decline of United States competitive advan- tages in chip production and trade during the 1980’s prompted the U.S. Congress to adopt a sui generis protection. Industry was particularly concerned with the increasing strength of Japanese competitors and their ability to eventually copy American designs. Though the U.S. Congress considered the possibility of protecting integrated circuits designs under copyright, the SCPA established a sui generis regime that provided for ten years’ protection; registration was made compulsory within two years of the first “commercial exploitation” of a “mask work”988. A special pro- vision allowing for “reverse engineering” was included, following the practices prevailing in the semiconductor industry. The SCPA, in addition, included a strict material reciprocity clause under which layout designs originating in other coun- tries would be protectable in the United States only if those countries granted similar protection to U.S. designs. This reciprocity clause forced Japan to rapidly adopt similar legislation,989 fol- lowed by the European Communities990 and other developed countries. WIPO, shortly after the enactment of the SCPA, initiated studies and consul- tations in order to establish an international treaty on the matter. It convened a Diplomatic Conference which adopted the Washington Treaty based on the sui generis approach first introduced by U.S. law without excluding, however, the ap- plication of other forms of protection. 988 This terminology corresponds to the technology used at the time of adoption of the SCPA, which was based on the utilization of “masks” for the reproduction of layouts. A mask was a template whose configuration controlled the deposition, doping, or etching of specific areas on each succeeding layer of a wafer. Where the mask had holes, new material was deposited or existing material was doped or etched. The manufacturer used a series of masks of different configurations in the proper order to build upon the wafer the collection of transistors and other components required for the electronic design (Xxxxxxx, pp. 8–7). 989 “Act concerning the circuit lay-out of a semiconductor integrated circuit” (law No. 43). 990 Council Directive on the Legal Protection of Topographies of Semiconductor Produ...
Situation pre-TRIPS. The Vienna Convention on the Law of Treaties expressly addresses reservations to treaties and their effect (see Articles 19–23). There is an extensive legal literature on the nature and effect of reservations,195 and there are decisions of interna- tional tribunals that address them. Generally, a reservation to a treaty may be entered by a state adhering to it provided that the treaty does not expressly ex- clude this, or if this would be inconsistent with the object and purpose of the treaty. If other state parties to the treaty do not object to the reservation, it will take effect. If a party objects to a reservation, it does not take effect with respect to that party. The result for the adhering (i.e., reserving) party’s treaty obligations in that situation will vary depending on the circumstances (see Article 21.3 of the VCLT). 195 See generally, Parliamentary Participation in the Making and Operation of Treaties: A Com- parative Study (X. X. Xxxxxxxxxx & X. X. Xxxxxx, eds. 1994: Xxxxxxxx Xxxxxxx/Kluwer). 796
Situation pre-TRIPS. Prior to TRIPS, computer programs already enjoyed copyright protection in a significant number of countries. For example, in the United States, computer pro- grams have been protected by copyright, as confirmed in 1976 when the Copyright Act was amended to expressly acknowledge that computer programs are within the subject matter scope of protection. Similarly, in 1991 the European Com- munity Directive on the Legal Protection of Computer Programs66 (“EC Software Directive”) required member countries to extend copyright protection to computer programs.67 Indeed, by 1991, at least 54 countries recognized copyright protection in computer programs. While most did so through legislative amendment, a few took place through executive proclamations or judicial decisions that extended the existing copyright laws to computer programs.68
