1204.4 Eligibility Based on Nationality of Owner or Nation of First Commercial Exploitation
Any original mask work fixed in a semiconductor chip product by or under the authority of the mask work owner is eligible for protection if it meets one of the following criteria:
1. On the date the mask work is registered with the U.S. Copyright Office or the date the mask work is first commercially exploited anywhere in the world, whichever occurs first, the owner of the mask work is:
• A national or domiciliary of the United States; or
• A national, domiciliary, or sovereign authority of a foreign nation that is a party with the United States to a treaty affording protection to mask works; or
• A stateless person;
2. The mask work is first commercially exploited in the United States; or
3. The mask work comes within the scope of a Presidential proclamation extending protection to mask works of nationals and domiciliaries of a foreign country and to works first commercially exploited in that country, on the basis of a finding that mask works protected under Chapter 9 of the U.S. Copyright Act are also protected in the particular foreign country, either under the principle of reciprocity or under the principle of national treatment. 17 U.S.C. § 902 (A).
To “commercially exploit” a mask work means “to distribute to the public for commercial purposes a semiconductor chip product embodying the mask work; except that the term includes an offer to sell or transfer a semiconductor chip product only when the offer is in writing and occurs after the mask work is fixed in the semiconductor chip product.” 17 U.S.C. § 901 (A) (5).
NOTE: All countries that are members of the World Trade Organization (“WTO”) became eligible for mask work protection on June 1, 1996, under Presidential Proclamation 6780, which was issued on March 23, 1995. Additionally, that proclamation extended mask work protection to Australia, Canada, Japan, Switzerland, and the member states of the European Community as of July 1, 1995. See Proclamation No. 6780, 60 Fed. Reg. 15,844 (Mar. 27, 1995). A complete and current list of WTO members is maintained on the WTO’s website.