[Notes on the Preamble, contd.]
IPIC/DC/3 page 10
24.
The first main private interest that must be brought into the proper balance in order to serve the public interest is the interest of the creator of the layout-design, who invests time and money in order to make the creation. The cost of such investment can be recuperated only through the sale of microchips incorporating the layout-design and products containing such microchips. Therefore, in order to encourage creation, it is not sufficient to establish a right that enables the holder of the right to require the obtaining of his authorization for any reproduction of the layout-design. What is important is that such a right comprises also the distribution of microchips incorporating the layout-design and products containing such microchips. If the creator could only prohibit unauthorized copying but not unauthorized distribution of microchips with copied layout-designs, such microchips could be manufactured in a country where, for example, for reasons of the applicable domestic legislation, the creator does not have any rights, and microchips incorporating the layout-design in question could be freely manufactured and distributed. The creator would not have any reward for his investments and efforts, since the right to prohibit unauthorized copying would not cover this case. The same considerations apply
where the creator grants a license in respect of the layout-design. The manufacturer of microchips has to make investments for the manufacture and to pay the license fee. The exclusive right is only meaningful if it is not limited to manufacturing but comprises also the distribution of microchips incorporating the layout-design and of products containing such microchips.
25.
On the other hand, there is the interest of other enterprises that wish to use the layout-design for manufacturing microchips or that wish to trade in microchips incorporating the layout-design, even if such use or incorporation has been effected without the authorization of the creator. is, firstly, that a technological achievement be made available, as quickly as The interest here possible, to potential competitors so that they can use it and, secondly, that trade in products incorporating technical achievements be subject to a minimum of restriction.
26.
In search of a proper balance, a choice of one or more alternatives is offered in respect of a number of provisions in the present text of the draft Treaty. Altogether, there are 12 main substantive provisions of the draft Treaty for which alternative approaches are given, namely, those contained in Articles 5(1)(ii), 6(1), 6(2), 6(3)(a)(i), 6(3)(b), 6(4), 7(ii), 8(2), 8(2)(b), 13, 13bis, and 13bis(3). The decision to prefer one particular alternative in each case in which a choice is offered will determine the way in which the balance of the different interests of creators of, and enterprises using, microchip technology, outlined in the two preceding paragraphs, will be struck. For example, the interest of creators is recognized in the obligation placed on Contracting Parties to consider unlawful the acts designated in paragraph (1) of Article 6, if performed without the authorization of the holder of the right. provisions of Article 6, however, either permit or require Contracting
The remaining Parties, in the interest of enterprises using microchip technology, to consider lawful certain acts that would otherwise be considered unlawful under paragraph (1) of Article 6 or to provide for measures restricting the rights of the holder of the right. A choice of alternatives is offered in respect of certain of those acts or measures. Thus, there are alternatives in paragraph (3)(a)(i) of Article 6 on the question of non-voluntary licenses. Similarly, alternatives are offered in paragraph (4) of Article 6 in respect of the sale and distribution of infringing articles by a bona fide acquirer of such articles in the case where those articles have been acquired before notice by the proprietor.
No comments yet.
Private notes are available after approval.