65.
66.
The optional exceptions concern:
(1)
(2)
(3)
non-voluntary licenses and antitrust measures (paragraph (3)),
the situation of a bona fide acquirer of infringing objects after actual notice (paragraph (4)),
exhaustion of rights, (paragraph (6)).
Ad paragraph (1): This paragraph enumerates the acts concerning protected layout-designs that can be lawfully performed only with the authorization of the holder of the right. That the rights are exclusive follows from the fact that their performance requires the authorization of the holder of the right (stated in the introductory words of the paragraph). There are, however, certain exceptions, and there may be others, as indicated in paragraphs 64 and 65, above.
67. The first such act (item (i)) is "reproducing a protected layout-design." This act would be committed when a protected layout-design is reproduced on, for example, a "mask" (that is, a graphic representation of the layers of the layout-design for the purpose of manufacturing a microchip) or on a computer tape. While intended to deal with the reproduction of a protected layout-design by a means other than incorporation of the layout-design in a microchip, the wording of item (i) would also extend to the reproduction of a protected layout-design by the manufacture of a microchip incorporating such a layout-design.
68. The question of whether the Treaty should make explicit the extent of reproduction that is prohibited, or whether this matter should be left to national law to decide, is addressed by the alternative proposed in the form of additional words contained in square brackets in item (i). If the words in square brackets were deleted, the extent of reproduction which would constitute an infringement of a protected layout-design would be determined by national law. If those words were, however, retained, Contracting Parties would be obliged to consider unlawful not only the reproduction of a protected layout-design in its entirety, but also the reproduction of a substantial part of such a layout-design. A part could be considered "substantial" if it contained the essential features of the layout-design and if the omitted part represented merely a non-essential portion of the whole layout-design.
69.
The second act that Contracting Parties are obliged to consider unlawful, if performed without the authorization of the holder of the right, is "the act of incorporating a protected layout-design ... in a microchip" (item (ii)). This provision would prohibit the unauthorized manufacture of a microchip incorporating the protected layout-design.
70.
The
The question of whether the Treaty should make explicit the extent of the incorporation of a protected layout-design that is to be prohibited is addressed by the alternative text in square brackets in item (ii). considerations here are similar to those which relate to the alternative text in item (i) (see paragraph 68, above).