4 replies
224 lines, 9737 bytes
[1]
From: "Micah D. Stolowitz Esq." <micah[_at_]TechLaw.Com>
Date: Wed, 17 Apr 96 10:17:47 -0700
Subject: Re: Circuit Board Designs
(jumping in the middle of this thread)
>
> Well, here's the rub. A printed circuit board layout (the electrically
> conductive tracings that go from component to component) are 2-D. I
> still don't think they're copyrightable. But I'd love to be proved
> wrong. Thanks. --Jim Palmer
Not so fast. First of all, PCB (printed circuit boards) are not 2-D any more. Most boards today have 3,4, 6, heck even 12 layers. Numerous interconnections are formed laterally and vertically; so you really have a 3-D work. It's a very complicated process to design (and build) multi-layer boards. My first reaction to the copyright question is the obvious one: it's all functional -- so no protection. But there are many (often millions) of ways to layout a circuit. A good deal of subjective judgment is involved; just ask a board designer.
For another example, think about EDA (electronic design automation) tools that do integrated circuit element "placement and routing". (You might analogize loosely to designing a city layout of buildings (circuit elements) and streets (interconnections). In both cases, functional considerations are paramount, but there is room for creativity.) Placement and routing tasks take pentium(tm) workstations DAYS to complete. Really. Often human intervention is required to converge to a solution. One could argue that a whole bunch of choices are made along the way, and that the creative talent of the designer very much contributes to the unique design that results. Giving this only 5 minutes of deliberation (I get paid for hourly work), I would argue for THIN protection, i.e. a literal, exact copy of a PCB or ASIC layout should be infringement.
[2]
Date: Wed, 17 Apr 1996 11:31:12 -0700 (PDT)
From: Terry Carroll <carroll[_at_]tjc.com>
Subject: Re: Circuit Board Designs
On 16 Apr 1996, Martha Luehrmann wrote:
>
> I am reprinting here a couple of notes from another maillist, Techno-L,
> that is primarily composed of technology transfer people in universities,
> government, and industry. I hope your collective brilliance can help us
> out.
. . .
> Is it possible to copyright the layout for a printed circuit board and
> charge royalties for each circuit board manufactured?
A PCB layout may at first appear to qualify as among the "pictorial, graphic and sculptural works,' as defined in section 101 and specifically listed as copyrightable on section 102(5). However, any copyright in such a work would, in this case, be significantly attenuated by the restrictions put on such a copyright by the section 101 definitions of PG&S works and of "useful article."
That a PCB design may be within the definition of a PG&S work comes from the initial sentence of the definition of PG&S works:
"Pictorial, graphic, and sculptural works" include two-dimensional
and three-dimensional works of fine, graphic, and applied art,
photographs, prints and art reproductions, maps, globes, charts,
diagrams, models, and technical drawings, including architectural
plans. . . .
However, what the first sentence giveth, the second taketh away:
Such works shall include works of artistic craftsmanship insofar
as their form but not their mechanical or utilitarian aspects are
concerned; the design of a useful article, as defined in this
section, shall be considered a pictorial, graphic, or sculptural
work only if, and only to the extent that, such design incorporates
pictorial, graphic, or sculptural features that can be identified
separately from, and are capable of existing independently of, the
utilitarian aspects of the article.
The PCB layout is clearly a design for a useful article, not only as a matter of common sense, but under the statutory definition:
A "useful article" is an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the
article or to convey information. An article that is normally a
part of a useful article is considered a "useful article."
Under the PG&S work second sentence, then, copyright will not extend to the utilitarian aspect of the PCB design, which is really what you're trying to protect.
Some cases that discuss the interplay of protection for such works while maintaining the unprotected status of the utilitarian aspects include:
An excellent law review article on this topic is Professor Robert Denicola's "Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 Minn. L.Rev. 707 (1983). Professor Denicola's suggested test was adopted by the Second Circuit in the Brandir case, and I believe that it is still the law of the Second Circuit.
-- Terrence J. Carroll Attorney at Law ph: 415/843-5090 Cooley Godward Castro Huddleson & Tatum fax: 415/843-0663 Five Palo Alto Square email (office): carrolltj[_at_]cooley.com Palo Alto, CA 94306-2155 email (personal): carroll[_at_]tjc.com [3] Date: Wed, 17 Apr 1996 20:02:33 -0400 From: SJamar[_at_]aol.com Subject: Re: Circuit Board Designs The semiconductor chip protection act protects maskworks for, naturally enough, semiconductor chips. It does not protect circuit boards. The failure to include circuit boards in that act and the failure to include circuit boards in any of the copyright revisions in the last twenty years argues, to me, against coverage. Circuit boards are utilitarian works and it is the utility one seeks to protect, not the artistic expression of that utility. Concepts of merger and external efficiencies would tend to make circuit boards not copyrightable. I am unfamiliar with the 2-D, 3-D distinction being meaningful in these categories. If one wanted to frame the circuit board and present it as a work of art, then it could be copyrighted as a work of art. But I doubt that this dodge would work for a "real" circuit board. But it probably would protect the screen background or wall hanging from being copied exactly. There is a recent case, Bateman v. Mnemonics, 1996 WL 128141 (11th Cir.(Fla.) Mar. 22, 1996) which seems to suggest that such circuit diagrams would be utilitarian works. That case involved someone making a circuit from a software flow chart or something like that. I've not read it recently. It would not completely answer the question, in any event, because of the procedural posture of the case. But I would not expect there to be a copyright for your design in the 11th circuit. Cheers, Steven D. Jamar Assoc. Prof. & Dir. LRW Program Howard University School of Law sjamar[_at_]law.howard.edu or sjamar[_at_]aol.com "Those who say it can't be done should not interrupt those who are busy doing it." Chinese Proverb [4] Date: 17 Apr 1996 17:28:13 U From: "Martha Luehrmann" <Martha_Luehrmann[_at_]macmail2.lbl.gov> Subject: Copyright of Printed CircuiReceived on Wed Apr 17 1996 - 14:27:39 GMT
> On Tue, 16 Apr 1996, "James R. (Jim) Palmer" <pmr[_at_]ornl.gov> wrote:
>
> Is it possible to copyright the layout for a printed circuit board and
> charge royalties for each circuit board manufactured?
and cited:
> "Intellecutal Property Law: Commercial, Creative and Industrial Property,"
> (Law Journal Seminars - Press, New York), Jay Dratler, Jr.
I shared the message with Dr. Dratler of the University of Hawaii's William S. Richardson School of Law and got this response: Your correspondent is essentially right. Although the circuit boards' plans are probably protected by copyright, the copyright is weak, because the boards are useful articles under section 101, and copyright does not protect industrial design. Even if the plans are protected, they are protected only in their aesthetic aspects, and then only to the extent that their aesthetic aspects are separable from their utilitarian aspects (see section 101's definition of "pictorial, graphic, and sculptural works"). Since the boards' layouts are probably dictated solely by function, and not by aesthetics, copyright protection is likely to be weak or nonexistent. Unlike architecture (before the 1990 Act), circuit boards are not designed for aesthetic viewing. In a case of egregious copying involving the plans, a court might be tempted to award damages, but I doubt it. Injunctive relief is unlikely in the extreme. This is essentially the reason why a new statute was required in 1984 to protect semiconductor chips. The best way to protect circuit boards is through trade secrecy (if you can "pot" them with expoxy that cannot be removed without destroying the boards) or patent. Otherwise, you must cast them in silicon and seek protection under the Chip Act. Dr. Dratler William S. Richardson School of Law University of Hawaii ============================================================== Administrative email concerning the management of the techno-l mailing list should be sent to owner-techno-l[_at_]erg.sri.com. Martha Luehrmann <Martha_Luehrmann[_at_]macmail2.lbl.gov>
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