U.S.A. Copyright Law, Library of Congress. Copyright Office [reading diary TXT] 📗

suffered by the person as a result of the infringement.

The court shall also award such person the infringer's profits that are

attributable to the infringement and are not taken into account in

computing the award of actual damages. In establishing the infringer's

profits, such person is required to present proof only of the

infringer's gross revenue, and the infringer is required to prove his or

her deductible expenses and the elements of profit attributable to

factors other than the mask work.

(c) At any time before final judgment is rendered, a person entitled to

institute a civil action for infringement may elect, instead of actual

damages and profits as provided by subsection (b), an award of statutory

damages for all infringements involved in the action, with respect to

any one mask work for which any one infringer is liable individually, or

for which any two or more infringers are liable jointly and severally,

in an amount not more than $250,000 as the court considers just.

(d) An action for infringement under this chapter shall be barred unless

the action is commenced within three years after the claim accrues.

(e)(1) At any time while an action for infringement of the exclusive

rights in a mask work under this chapter is pending, the court may order

the impounding, on such terms as it may deem reasonable, of all

semiconductor chip products, and any drawings, tapes, masks, or other

products by means of which such products may be reproduced, that are

claimed to have been made, imported, or used in violation of those

exclusive rights. Insofar as practicable, applications for orders under

this paragraph shall be heard and determined in the same manner as an

application for a temporary restraining order or preliminary injunction.

(2) As part of a final judgment or decree, the court may order the

destruction or other disposition of any infringing semiconductor chip

products, and any masks, tapes, or other articles by means of which such

products may be reproduced.

(f) In any civil action arising under this chapter, the court in its

discretion may allow the recovery of full costs, including reasonable

attorneys' fees, to the prevailing party.

(g)(1) Any State, any instrumentality of a State, and any officer or

employee of a State or instrumentality of a State acting in his or her

official capacity, shall not be immune, under the Eleventh Amendment of

the Constitution of the United States or under any other doctrine of

sovereign immunity, from suit in Federal court by any person, including

any governmental or nongovernmental entity, for a violation of any of

the exclusive rights of the owner of a mask work under this chapter, or

for any other violation under this chapter.

(2) In a suit described in paragraph (1) for a violation described in

that paragraph, remedies (including remedies both at law and in equity)

are available for the violation to the same extent as such remedies are

available for such a violation in a suit against any public or private

entity other than a State, instrumentality of a State, or officer or

employee of a State acting in his or her official capacity. Such

remedies include actual damages and profits under subsection (b),

statutory damages under subsection (c), impounding and disposition of

infringing articles under subsection (e), and costs and attorney's fees

under subsection (f).

Section 912. Relation to other laws [7]

(a) Nothing in this chapter shall affect any right or remedy held by any

person under chapters 1 through 8 or 10 of this title, or under title

35.

(b) Except as provided in section 908(b) of this title, references to

"this title" or "title 17" in chapters 1 through 8 or 10 of this title

shall be deemed not to apply to this chapter.

(c) The provisions of this chapter shall preempt the laws of any State

to the extent those laws provide any rights or remedies with respect to

a mask work which are equivalent to those rights or remedies provided by

this chapter, except that such preemption shall be effective only with

respect to actions filed on or after January 1, 1986.

(d) Notwithstanding subsection (c), nothing in this chapter shall

detract from any rights of a mask work owner, whether under Federal law

(exclusive of this chapter) or under the common law or the statutes of a

State, heretofore or hereafter declared or enacted, with respect to any

mask work first commercially exploited before July 1, 1983.

Section 913. Transitional provisions

(a) No application for registration under section 908 may be filed, and

no civil action under section 910 or other enforcement proceeding under

this chapter may be instituted, until sixty days after the date of the

enactment of this chapter.

(b) No monetary relief under section 911 may be granted with respect to

any conduct that occurred before the date of the enactment of this

chapter, except as provided in subsection (d).

(c) Subject to subsection (a), the provisions of this chapter apply to

all mask works that are first commercially exploited or are registered

under this chapter, or both, on or after the date of the enactment of

this chapter.

(d)(1) Subject to subsection (a), protection is available under this

chapter to any mask work that was first commercially exploited on or

after July 1, 1983, and before the date of the enactment of this

chapter, if a claim of protection in the mask work is registered in the

Copyright Office before July 1, 1985, under section 908.

(2) In the case of any mask work described in paragraph (1) that is

provided protection under this chapter, infringing semiconductor chip

product units manufactured before the date of the enactment of this

chapter may, without liability under sections 910 and 911, be imported

into or distributed in the United States, or both, until two years after

the date of registration of the mask work under section 908, but only if

the importer or distributor, as the case may be, first pays or offers to

pay the reasonable royalty referred to in section 907(a)(2) to the mask

work owner, on all such units imported or distributed, or both, after

the date of the enactment of this chapter.

(3) In the event that a person imports or distributes infringing

semiconductor chip product units described in paragraph (2) of this

subsection without first paying or offering to pay the reasonable

royalty specified in such paragraph, or if the person refuses or fails

to make such payment, the mask work owner shall be entitled to the

relief provided in sections 910 and 911.

Section 914. International transitional provisions [8]

(a) Notwithstanding the conditions set forth in subparagraphs (A) and

(C) of section 902(a)(1) with respect to the availability of protection

under this chapter to nationals, domiciliaries, and sovereign

authorities of a foreign nation, the Secretary of Commerce may, upon the

petition of any person, or upon the Secretary's own motion, issue an

order extending protection under this chapter to such foreign nationals,

domiciliaries, and sovereign authorities if the Secretary finds-

(1) that the foreign nation is making good faith efforts and reasonable

progress toward-

(A) entering into a treaty described in section 902(a)(1)(A); or

(B) enacting or implementing legislation that would be in compliance

with subparagraph (A) or (B) of section 902(a)(2); and

(2) that the nationals, domiciliaries, and sovereign authorities of the

foreign nation, and persons controlled by them, are not engaged in the

misappropriation, or unauthorized distribution or commercial

exploitation, of mask works; and

(3) that issuing the order would promote the purposes of this chapter

and international comity with respect to the protection of mask works.

(b) While an order under subsection (a) is in effect with respect to a

foreign nation, no application for registration of a claim for

protection in a mask work under this chapter may be denied solely

because the owner of the mask work is a national, domiciliary, or

sovereign authority of that foreign nation, or solely because the mask

work was first commercially exploited in that foreign nation.

(c) Any order issued by the Secretary of Commerce under subsection (a)

shall be effective for such a period as the Secretary designates in the

order, except that no such order may be effective after that date on

which the authority of the Secretary of Commerce terminates under

subsection (e). The effective date of any such order shall also be

designated in the order. In the case of an order issued upon the

petition of a person, such effective date may be no earlier than the

date on which the Secretary receives such petition.

(d)(1) Any order issued under this section shall terminate if-

(A) the Secretary of Commerce finds that any of the conditions set forth

in paragraphs (1), (2), and (3) of subsection (a) no longer exist; or

(B) mask works of nationals, domiciliaries, and sovereign authorities of

that foreign nation or mask works first commercially exploited in that

foreign nation become eligible for protection under subparagraph (A) or

(C) of section 902(a)(1).

(2) Upon the termination or expiration of an order issued under this

section, registrations of claims of protection in mask works made

pursuant to that order shall remain valid for the period specified in

section 904.

(e) The authority of the Secretary of Commerce under this section shall

commence on the date of the enactment of this chapter, and shall

terminate on July 1, 1995.

(f) (1) The Secretary of Commerce shall promptly notify the Register of

Copyrights and the Committees on the Judiciary of the Senate and the

House of Representatives of the issuance or termination of any order

under this section, together with a statement of the reasons for such

action. The Secretary shall also publish such notification and statement

of reasons in the Federal Register.

(2) Two years after the date of the enactment of this chapter, the

Secretary of Commerce, in consultation with the Register of Copyrights,

shall transmit to the Committees on the Judiciary of the Senate and the

House of Representatives a report on the actions taken under this

section and on the current status of international recognition of mask

work protection. The report shall include such recommendation for

modifications of the protection accorded under this chapter to mask

works owned by nationals, domiciliaries, or sovereign authorities of

foreign nations as the Secretary, in consultation with the Register of

Copyrights, considers would promote the purposes of this chapter and

international comity with respect to mask work protection. Not later

than July 1, 1994, the Secretary of Commerce, in consultation with the

Register of Copyrights, shall transmit to the Committees on the

Judiciary of the Senate and the House of Representatives a report

updating the matters contained in the report transmitted under the

preceding sentence.

Chapter 9 Endnotes

1 In 1984, the Semiconductor Chip Protection Act amended title 17 of

the United States Code to add a new chapter 9 entitled "Protection of

Semiconductor Chip Products." Pub. L. No. 98-620, 98 Stat. 3347.

2 In 1997, the heading for section 903 in the table of sections was

amended by adding ", transfer, licensure, and recordation" at the end

thereof, in lieu of "and transfer." Pub. L. No. 105-80, 111 Stat. 1529,

1535.

3 In 1987, section 902 was amended by adding the last sentence in

subsection (a)(2). Pub. L. No. 100-159, 101 Stat. 899, 900.

4 In 1997, section 909 was amended by correcting misspellings in

subsection (b)(1). Pub. L. No. 105-80, 111 Stat. 1529, 1535.

5 In 1990, the Copyright Remedy Clarification Act amended section 910

by adding the last two sentences to subsection (a). Pub. L. No. 101-553,

104 Stat. 2749, 2750. In 1997, a technical correction amended section

910(a) by capitalizing the first word of the second sentence. Pub. L.

No. 105-80, 111 Stat. 1529 1535.

6 In 1990, the Copyright Remedy Clarification Act amended section 911

by adding subsection (g). Pub. L. No. 101-553, 104