What is Mask Work?

The perspective and/or examples in this article do not represent a world-wide view. Please [ edit] this page to improve its geographical balance.

Intellectual property law
Primary rights
Copyright Patents Trademarks Industrial design rights Utility models Geographical indication Trade secrets Related rights Tradenames Domain names
Sui generis rights
Database rights Mask work Plant breeders' rights Supplementary protection certificate Traditional knowledge
[ edit box]

A mask work is a two or three-dimensional layout or topography of an integrated circuit (IC or "chip"), i.e. the arrangement on a chip of semiconductor devices such as transistors and passive electronic components such as resistors and interconnections. By extension, it also refers to the copyright-like intellectual property right conferring time-limited exclusivity to reproduction of a particular layout. The layout is called a mask work because, in photolithographic processes, the multiple etched layers within actual ICs are each created using a mask, called the photomask, to permit or block the light at specific locations, sometimes for hundreds of chips on a wafer simultaneously.

Because of the functional nature of the mask geometry, the designs cannot be effectively protected under copyright law (except perhaps as decorative art). Similarly, because individual lithographic mask works are not clearly protectable subject matter, they also cannot be effectively protected under patent law, although their combined functions and structure certainly may.

The United States Code (USC) defines a mask work as "a series of related images, however fixed or encoded, having or representing the predetermined, three-dimensional pattern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product, and in which the relation of the images to one another is such that each image has the pattern of the surface of one form of the semiconductor chip product" (17 U.S.C.  901 (a) (2)). Mask work exclusive rights were first granted in the US by the Semiconductor Chip Protection Act of 1984. In Canada these rights are protected under the Integrated Circuit Topography Act (1990, c. 37). Equivalent legislation exists in Australia and Hong Kong.

Mask work rights under US Law

According to 17 U.S.C.  904, rights in semiconductor mask work last only two years (if unregistered) or ten years (if registered). This contrasts with a term of 95 years for modern copyrighted works with a corporate authorship; alleged infringement of mask work rights are also not protected by a statutory fair use defense, nor by the typical backup copy exemptions that 17 U.S.C.  117 provides for computer software. Nevertheless, as fair use in copyrighted works was originally recognized by the judiciary long before being codified in statute law, it's possible that the courts might likewise find a similar defense applies to mask work.

The non-obligatory symbol used in a mask work's protection notice is Ⓜ (M enclosed in a circle; Unicode code point U+24C2 or HTML numeric character entity Ⓜ) or *M*, not (M) in parentheses as some web browsers may render it.

Mask works, copyrights, and read-only memory

The exclusive rights in a mask work are somewhat like those of copyright: the right to reproduce the mask work or (initially) distribute an IC made using the mask work. Like the first sale doctrine, a lawful owner of an authorized IC containing a mask work may freely import, distribute or use, but not reproduce the chip (or the mask). Mask work protection is characterized as a sui generis right, i.e., one created to protect specific rights where other (more general) laws were inadequate or inappropriate.

Note that the exclusive rights granted to mask work owners are more limited than those granted to copyright or patent holders. For instance, modification (derivative works) is not an exclusive right of mask work owners. Similarly, the exclusive right of a patentee to "use" an invention would not prohibit an independently created mask work of identical geometry. Furthermore, reproduction for reverse engineering of a mask work is specifically permitted by the law. As with copyright, mask work rights exist when they are created, regardless of registration, unlike patents, which only confer rights after application, examination and issuance.

Mask work rights have more in common with copyrights than with other exclusive rights such as patents or trademarks. On the other hand, they are used alongside copyright to protect a read-only memory (ROM) component that is encoded to contain computer software.

The publisher of software for a cartridge-based video game console may seek simultaneous protection of its property under several legal constructs:

• a trademark registration on the game's title and possibly other marks such as fanciful names of worlds and characters used in the game (e.g., PAC-MAN®);
• a Form TX copyright registration on the program as a "literary work";
• a Form PA copyright on the visual displays generated by the work (depending on whether code or art dominates a program); and
• a Form MW mask work registration on the ROM that contains the binary.

The expiration date for the term of mask work may be set according to an untested interpretation of the originality requirement of § 902(b), based on the release of the console, not any particular cartridge.

(b) Protection under this chapter (i.e., as a mask work) shall not be available for a mask work that -

(1) is not original; or

(2) consists of designs that are staple, commonplace, or familiar in the semiconductor industry, or variations of such designs, combined in a way that, considered as a whole, is not original

(17 U.S.C.  902, as of February 2003).

Under this interpretation, a mask work containing a given game title is either entirely unoriginal, as mask ROM in general is likely a familiar design, or a minor variation of the mask work for any of the first titles released for the console in the region, normally the cartridge included with the system. In the United States, this is Super Mario Bros. (NES), Tetris (Game Boy), Altered Beast (Sega Genesis), Super Mario World (Super NES), Mario's Tennis (Virtual Boy), Super Mario 64 (Nintendo 64), or Super Mario Advance (Game Boy Advance).

This could explain why Nintendo waited until lawmakers passed the DMCA and foreign counterparts before releasing a game console that used media other than cartridges. On the other hand, the previously existing copyright law would still protect the underlying software (source, binary) and original characters and art from copying or derivative works.

International treaties

The Treaty on Intellectual Property in respect of Integrated Circuits, also called Washington Treaty or IPIC Treaty (signed at Washington on May 26, 1989) is currently not in force, but was partially integrated into the TRIPs agreement.

See also

• Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)
• Copyright
• Intellectual property
• Semiconductor intellectual property core

External links

• Text of the Washington Treaty on IC protection