SPECIAL 301: BURMA'S IPR SITUATION WORTH WATCHING

UNCLAS SECTION 01 OF 02 RANGOON 000209

SIPDIS

SENSITIVE

STATE FOR EAP/BCLTV, EB/IPE SWILSON
STATE PASS USTR FOR JCHOE-GROVES, USPTO JURBAN, LOC STEPP
COMMERCE FOR JBOGER, ITA JEAN KELLY
TREASURY FOR OASIA
USPACOM FOR FPA

E.O. 12958: N/A
TAGS: ECON ETRD KIPR PGOV PREL BM
SUBJECT: SPECIAL 301: BURMA'S IPR SITUATION WORTH WATCHING

REF: STATE 25660


1. (SBU) Summary: This cable is in response to reftel
request. Intellectual Property Rights (IPR) are not
adequately protected in Burma. There is insufficient
legislative protection and basically no law enforcement
attention to the problem. There are unverified rumors of
unregulated optical media plants inside Burma, though output
is likely small relative to production elsewhere in the
region. Because the impact of Burmese piracy on U.S. exports
is small, and the GOB claims it is on track to meet its TRIPs
requirements in 2006 (with improved legislation and law
enforcement),we think it is one or two years premature to
put Burma on any formal or informal list of countries of
serious IPR concern. However, it is not too early to raise
our concerns with the GOB. End summary.

Background: Sanctions Limit U.S.-Burma Trade


2. (U) In May 1997, the United States imposed investment and
other sanctions against Burma, including the suspension of
commercial assistance programs. In July 2003, legislation
barred the import of Burmese products into the United States
and an executive order outlawed the export of U.S. financial
services to Burma. U.S. commercial policy toward Burma is to
neither encourage nor discourage legal exports. U.S. exports
to Burma in 2004 were about $11.6 million. Given this
limited trade and economic relationship with Burma, Post does
not submit National Trade Estimate reports.

IPR: Legislative Framework and Enforcement Weak


3. (U) Burma does not yet have adequate IPR protection.
Patent, trademark, and copyright laws and regulations are all
deficient. A Patents and Design Act was introduced in 1946,
but never brought into force. Thus the Indian Patent and
Designs Act of 1911, which was enacted under British colonial
rule, continues to govern the registration of patents and
designs. There are rumors that a comprehensive IPR law is in
the works to make Burma compliant with its WTO TRIPs
obligations in 2006 (Burma is designated a least-developed
country for purposes of TRIPs compliance). After Burma
joined ASEAN in 1997, it agreed to modernize its intellectual
property laws in accordance with the ASEAN Framework
Agreement on Intellectual Property Cooperation and subsequent
2004-2010 action plan. However, there has been little
evident action in this direction.


4. (SBU) Lack of adequate legal protection, very poor
understanding of IPR among consumers and policymakers, and a
cash-strapped populace and business community spell trouble
for IPR protection. Piracy of optical media (music and video
CDs, CD-ROMS, and DVDs),books, software, and designs is
evident nationwide -- especially in the Thai and Chinese
border regions and in the two major urban centers of Rangoon
and Mandalay. The vast majority of consumers of IT products,
private and governmental, are using pirated software. Much
of the pirated U.S.-origin optical media and software is
imported from China and Thailand. There have been reliable
reports in the past that unregulated optical media plants are
operating inside Burma. However, we cannot verify this
information, and output, if it exists, is likely small
relative to regional production.


5. (U) Burma has no trademark law, though trademark
registration is possible. Some firms place a trademark
caution notice in the regime's official newspaper, declaring
ownership. Once this notice has been published, criminal
and/or civil action can be taken against trademark
infringers. Title to a trademark depends on use of the
trademark in connection with goods sold in Burma. While the
Copyright Act was promulgated in 1914, no means to register a
copyright was ever instituted. There is thus no legal
protection in Burma for foreign copyrights.


6. (U) Burmese law enforcement officials do not prosecute
piracy of domestic or foreign IPR except incidentally when
such activity breaks other laws. For instance, the existence
of domestically pirated or illegally imported optical media
and books, in particular, are of concern to Burma's military
regime (the State Peace and Development Council or SPDC)
because the material has not passed the GOB's censorship
board. Recently authorities have been cracking down on
vendors of unlicensed foreign CDs and DVDs, with the
unintended consequence of punishing purveyors of pirated
goods.

Comment: Is Burma Fit for the List?


7. (SBU) U.S. industry is correct in pointing out that Burma
is at risk of becoming a serious IPR problem. Porous,
remote, and, in some cases, relatively lawless border
regions, combined with rampant corruption and active
narcotics trafficking organizations inside Burma make the
movement of optical piracy plants to Burma a real threat.
Likewise, it is true that the GOB has yet to meet its TRIPs
requirements or sign the WIPO Internet Treaties or other
international accords. However, we note that the scale of
the local problem is still very small compared to neighboring
countries. Given a limited number of likely domestic
customers (most Burmese are too poor) and a chronic lack of
adequate infrastructure (e.g., reliable electricity) in most
of the country, we do not believe Burmese consumption of
domestically produced pirated products has a significant
adverse impact on U.S. exports.


8. (SBU) (Comment, cont.) As Burma is not yet required to
meet TRIPs requirements, we also think it may be too early to
start officially critiquing a lax law enforcement response.
Thus, we think it's one or two years premature to add Burma
to any formal or informal listing of countries of IPR
concern. Nonetheless, it is not too early to raise our
concerns with the GOB over IPR violations in Burma. End
comment.
Martinez