An Outline of Australian Circuit Layout Rights Law
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Introduction
This lens is one of a series of lenses which looks at intellectual property rights in Australia. Although the lens focuses on the legal regime in Australia, it does contain useful information for business owners both in and outside Australia. This lens contains general information only and is not intended to constitute legal advice. Each reader of this lens should obtain specific advice relevant to their individual circumstances.
This lens looks at circuit layout rights, but before discussing circuit layout rights, it is worthwhile considering intellectual property rights in general.
The term "intellectual property" covers a series of legal rights which have an impact on almost every aspect of business. Intellectual property is intangible property created by statute. The owner is given the exclusive right to do certain acts which give the owner a commercial benefit. Like physical property (such as land), intellectual property can be exploited or commercialised in a number of ways. For more information about intellectual property rights generally and the international conventions and treaties that apply, see the World Intellectual Property Organisation website.
All intellectual property rights are territorial. This means that Australian intellectual property rights do not affect activities outside of Australia which take place wholly outside of Australia. Parallel rights exist in other countries.
Many organisations recognise the need to identify, capture and exploit intellectual property that is generated in the ordinary course of their business and understand the importance of using intellectual property rights they have licensed in accordance with their licence terms. However, many businesses, do not and that is largely due to a misunderstanding of what actually constitutes intellectual property and the rights which attach to each different type of intellectual property.
The information included in this lens is derived from the Circuit Layouts Act 1989 (Cth).
This lens looks at circuit layout rights, but before discussing circuit layout rights, it is worthwhile considering intellectual property rights in general.
The term "intellectual property" covers a series of legal rights which have an impact on almost every aspect of business. Intellectual property is intangible property created by statute. The owner is given the exclusive right to do certain acts which give the owner a commercial benefit. Like physical property (such as land), intellectual property can be exploited or commercialised in a number of ways. For more information about intellectual property rights generally and the international conventions and treaties that apply, see the World Intellectual Property Organisation website.
All intellectual property rights are territorial. This means that Australian intellectual property rights do not affect activities outside of Australia which take place wholly outside of Australia. Parallel rights exist in other countries.
Many organisations recognise the need to identify, capture and exploit intellectual property that is generated in the ordinary course of their business and understand the importance of using intellectual property rights they have licensed in accordance with their licence terms. However, many businesses, do not and that is largely due to a misunderstanding of what actually constitutes intellectual property and the rights which attach to each different type of intellectual property.
The information included in this lens is derived from the Circuit Layouts Act 1989 (Cth).
Contents
- What are circuit layout rights?
- What is capable of protection?
- Here's an example
- How is a circuit layout protection obtained?
- Who owns a circuit layout?
- How long does a circuit layout right last?
- What are the benefits of a circuit layout right?
- What are the disadvantages of circuit layout rights?
- What constitutes infringement of circuit layout rights?
- About Me
- Guestbook Comments
What are circuit layout rights?
Australian law recognises circuit layout rights as intellectual property separate from copyright. Circuit layouts cover the design or layout and any integrated circuit implementing the protected layout.
What is capable of protection?
What is protected as a circuit layout? satisfy the following criteria:
* the circuit layout must be fixed in a material form (which is broadly defined to include any form of storage (whether it is visible or not) from which the layout or a substantial part of it can be reproduced);
* the layout must have been made by an Australian citizen or resident or an Australian company or a company incorporated in a recognised country (as provided in the applicable regulations) or the layout was first commercialised in Australia or a recognised country; and
* it must be original.
A circuit layout is commercially exploited if the layout, a copy of the layout or an integrated circuit based on layout is:
* sold, let for hire or otherwise distributed by way of trade;
* offered or exposed for sale or hire or other distribution by way of trade;
* imported for the purposes of sale, letting for hire or other distribution by way of trade.
A layout will not be considered to be original if its making involved no creative contribution by the maker or it was commonplace at the time it was made.
* the circuit layout must be fixed in a material form (which is broadly defined to include any form of storage (whether it is visible or not) from which the layout or a substantial part of it can be reproduced);
* the layout must have been made by an Australian citizen or resident or an Australian company or a company incorporated in a recognised country (as provided in the applicable regulations) or the layout was first commercialised in Australia or a recognised country; and
* it must be original.
A circuit layout is commercially exploited if the layout, a copy of the layout or an integrated circuit based on layout is:
* sold, let for hire or otherwise distributed by way of trade;
* offered or exposed for sale or hire or other distribution by way of trade;
* imported for the purposes of sale, letting for hire or other distribution by way of trade.
A layout will not be considered to be original if its making involved no creative contribution by the maker or it was commonplace at the time it was made.
Here's an example
How is a circuit layout protection obtained?
Circuit layout rights arise automatically. As there is no registration or other prerequisite for the existence of circuit layout protection, it is important to keep signed and dated originals and records of authorship of circuit layouts, records of when copies were made and records of when integrated circuits were made and first sold or licensed for sale.
Who owns a circuit layout?
The general rule is that the person who makes the circuit layout is the first owner of the circuit layout rights. If a person uses a computer to make a circuit layout, the maker is the person who first affixes the circuit layout in a material form. The principal exception to this is work created during the course of employment in which case, the maker's employer is the first owner of the circuit layout rights unless the employer and employee have come to another arrangement. This means that a consultant who is commissioned by a client to design a circuit layout will be the first owner of the circuit layout rights. Two or more persons can own circuit layout rights jointly.
How long does a circuit layout right last?
The protection period is dependent on whether the circuit layout is commercially exploited. If a circuit layout is exploited within 10 years after the calendar year in which the circuit layout was made, the protection period last for 10 years from the end of the calendar year in which the first commercial exploitation occurred. If a circuit layout is not commercially exploited, the protection lasts for a period of 10 years from the end of the calendar year in which the circuit layout was made.
What are the benefits of a circuit layout right?
An owner of circuit layout rights exclusive right to commercially exploit the circuit layout (see above for acts that constitute commercial exploitation). The owner can decide how to commercialise the rights - eg, the owner can either exploit the rights himself or herself or license others to do so.
What are the disadvantages of circuit layout rights?
Circuit layout rights only protect a representation which is fixed in a material form and three dimensional location.
What constitutes infringement of circuit layout rights?
Circuit layouts are infringed if a person, without the permission of the owner:
* makes a copy or authorises the making of a copy of the layout in a material form;
* makes, or authorises the making of, an integrated circuit made in accordance with the layout; and
* commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so. (Note that innocent exploitation is not prohibited).
Infringement occurs if the entire layout is copied or a substantial part of it. What amounts to a substantial part is a qualitative assessment.
Certain acts are not considered to be infringement. The permitted acts include copying a circuit layout or making an integrated circuit in accordance with the circuit layout or copy for:
* private use;
* research or teaching;
* analysis and evaluation; and
* use for defence or security.
* makes a copy or authorises the making of a copy of the layout in a material form;
* makes, or authorises the making of, an integrated circuit made in accordance with the layout; and
* commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so. (Note that innocent exploitation is not prohibited).
Infringement occurs if the entire layout is copied or a substantial part of it. What amounts to a substantial part is a qualitative assessment.
Certain acts are not considered to be infringement. The permitted acts include copying a circuit layout or making an integrated circuit in accordance with the circuit layout or copy for:
* private use;
* research or teaching;
* analysis and evaluation; and
* use for defence or security.
Do you want to read up about circuit layouts?
Do you want to read up about integrated circuits?
Do you want to read up about intellectual property in integrated circuits?
Do you want to read up about intellectual property rights?
About Me
by PizmoBeach
I live in Sydney, Australia. I am interested in law, especially in relation to new businesses.
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