[A2k] The Mandatory CL under Article 37 of the TRIPS

[James Packard Love]

Article 37 of the TRIPS is an interesting way to implement an
intellectual property right.  It pertains to layout-designs of
computer chips.

1.  Under this article, it is not unlawful to incorporate an "an
unlawfully reproduced layout-design or any article incorporating such
an integrated circuit," if "the person performing or ordering such
acts did not know and had no reasonable ground to know" that it was
unlawful.

2.  Once you find out that you have acquired an unlawful chip, *a
mandatory* compulsory license kicks in, as follows:

"Members *shall* provide that, after the time that such person has
received sufficient notice that the layout-design was unlawfully
reproduced, that person may perform any of the acts with respect to
the stock on hand or ordered before such time, but shall be liable to
pay to the right holder a sum equivalent to a reasonable royalty such
as would be payable under a freely negotiated licence in respect of
such a layout-design."



SECTION 6:  LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS

Article 37:  Acts Not Requiring the Authorization of the Right Holder

1. Notwithstanding Article 36, no Member shall consider unlawful the
performance of any of the acts referred to in that Article in respect
of an integrated circuit incorporating an unlawfully reproduced
layout-design or any article incorporating such an integrated circuit
where the person performing or ordering such acts did not know and
had no reasonable ground to know, when acquiring the integrated
circuit or article incorporating such an integrated circuit, that it
incorporated an unlawfully reproduced layout-design.  Members shall
provide that, after the time that such person has received sufficient
notice that the layout-design was unlawfully reproduced, that person
may perform any of the acts with respect to the stock on hand or
ordered before such time, but shall be liable to pay to the right
holder a sum equivalent to a reasonable royalty such as would be
payable under a freely negotiated licence in respect of such a layout-
design.

2. The conditions set out in subparagraphs (a) through (k) of Article
31 shall apply mutatis mutandis in the event of any non-voluntary
licensing of a layout-design or of its use by or for the government
without the authorization of the right holder


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James Packard Love
Knowledge Ecology International
mailto:james.love@keionline.org
tel. +1.202.332.2670 / U.S. mobile+1.202.361.3040, Geneva mobile
+41.76.413.6584

"If everyone thinks the same: No one thinks." Bill Walton"