Above the Law

“New legislation was needed because the stencil designs were too machine-like to fall properly within copyright law.”

The cyberage requires new laws

Has cyberspace created a new body of law, or is cyberlaw just old wine in new bottles? In at least one case, a new act has grown from the roots of existing statutes.

The Integrated Circuit Topography Act is a distinct and unique body of law brought about by the cyberage. The ICTAct came into force as late as 1993 and protects the stencil designs that map out the electronic pathways on semiconductor chips.

New legislation was needed because the stencil designs were too machine-like to fall properly within copyright law, yet too much like writing to be protected by patent law. In this way the rapid pace of technological change was met by a statutory solution, much in the same manner that the Copyright Act was amended in 1988 to specifically include computer software.

Under the ICT Act an owner of a “topography” (the legal name for the stencil design) has the exclusive right to reproduce, make, import, or commercially exploit the topography or any substantial part of it.

Protection lasts for 10 years from the earlier of the Canadian filing date or its first use in Canada. For topographies to be registered, they must be original. “Original” is defined as a design that has not been copied from another topography and is not commonplace.

Your guess is as good as mine as to what is meant by “not commonplace” since there are no decided cases in Canada under the ICT Act (and only one reported case under the American statute). Indeed, only a few topographies have been registered in Canada.

The ICT Act contains a “fair dealing” clause that allows third parties to engage in reverse engineering for purposes of analysis, education, research or teaching, as long as the third party does not copy the topography in question in its own subsequent products.

There is no infringement if a third-party independently created the same topography.

Unlike an author of a work under copyright law, a registered owner of a topography does not possess any moral rights. Moral rights are the non-pecuniary rights that protect the integrity of a work.

Moral rights prevent a work from being distorted, mutilated, or altered without the authors permission. Years ago Michael Snow successfully stopped the Eaton Centre from bedecking his Canadian Geese with red scarves as a Christmas promotion. An Ontario Court found that the bedecking of the sculpture that hangs from the roof at the south end of the mall infringed his moral rights.

As a bottle of wine, the ICT Act is a fine blend of copyright cabernet and trademark shiraz making a fine new wine that will no doubt grow with age.

Goldstein writes on legal issues and technology and practices law in Toronto. The opinions expressed in this column are not to be taken as legal advice. He can be reached at [email protected].

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