Eligibility for Copyright Protection: A Search for Principled Standards

Abstract

The Semiconductor Chip Protection Act of 1984 appears in Title 17 of the United States Code, entitled "Copyrights." Yet, the protection afforded by the Act is not traditional copyright protection. Though similar to copyright in important respects, it is a sui generis scheme. A bill supported by the Senate Committee would have inflicted a score of amendments on the copyright statute itself in order to protect chips. Fortunately, the sui generis approach that emerged from the House Committee prevailed. That copyright protection was seriously considered at all, and the persistence of copyright elements in the enacted statute, stimulate speculation about the proper scope of copyright protection. This Article considers several ways to appraise eligibility for copyright protection. To set the stage, in Part I it briefly considers the subject matter of copyright and the five exclusive rights granted to copyright owners under the present system. Subject matter and rights serve as a framework in which to discern areas of inclusion and exclusion from protection—either through legislative choice, judicial interpretation, or the hard knocks of widespread infringement. Within this framework, we will also glimpse how the boundaries of rights have shifted through time as new technologies and marketing strategies have developed.