BURMA'S INADEQUATE IPR REGIME

UNCLAS SECTION 01 OF 03 RANGOON 000244

SIPDIS

STATE FOR EAP/MLS AND EB/IPE
DEPT PLEASE ALSO PASS TO USTR: JCHOE-GROVES
DOC FOR JBOGER, DOC PLEASE PASS TO USPTO AND LOC

SENSITIVE

E.O. 12958: N/A
TAGS: ECON ETRD KIPR PGOV SNAR BM
SUBJECT: BURMA'S INADEQUATE IPR REGIME

REF: STATE 14937


1. (U) Burma is, and should remain, on the 2006 Special
Mention List for Special 301 Review. Following is an
update on the current IPR protection situation in Burma.

Overview
--------------

2. (U) Burma does not have adequate IPR protection.
Patent, trademark, and copyright laws and regulations are
all deficient in both regulation and enforcement. After
Burma joined ASEAN in 1997, it agreed to modernize its
intellectual property laws to comply with the ASEAN Framework
Agreement on Intellectual Property Cooperation. A new and
comprehensive IPR law, first drafted in 1994, still awaits
government approval and implementation. A Committee for IPR
Implementation, established in July 2004, is working to
obtain GOB approval of the new law, with assistance from the
World Intellectual Property Organization (WIPO). The WTO
postponed required implementation of the TRIPS Agreement for
Least Developed Nations from 2005 until 2013.


3. (U) The Government of Burma introduced a Patents and
Design Law in 1946, but never brought it into force. The
Indian Patents and Designs Act of 1911, enacted under British
colonial rule, still governs the registration of all patents
and designs.


4. (U) The piracy of music CDs, video CDs, CD-ROMS, DVDs,
books, software, and product designs is evident nationwide,
especially in border regions and in the major urban centers
of Mandalay and Rangoon. Most consumers of IT products in
Burma, both in the private sector and in government,
largely rely on pirated software. Given the poor state of
the economy, small number of local customers, and lack of
manufacturing infrastructure (e.g., unreliable electricity
and supplies, poor transportation networks),piracy does
not have a significant adverse impact on U.S. products at
this time.


5. (U) Burma has no trademark law, although trademark
registration is possible. Many domestic and international
firms place caution notices in local newspapers to declare
ownership of their trademarks. After publication, the owners
can in theory take criminal and/or civil action against
trademark infringers. Corruption and an untrained judiciary,
however, severely limit legal options. Title to a trademark
depends on use of the trademark in connection with goods sold
in Burma.


6. (U) The British colonial government published a Copyright
Act in 1914, but without any means to register copyrights.
Since no succeeding government has ever instituted a means to
register copyrights, there is no legal protection in Burma
for foreign copyrights.


7. (U) In the absence of effective IPR protection laws,
local laws such as the Merchandise Marks Act, the Specific
Relief Act, the Sea Customs Act, and the overall penal code
provide the only possible protection for intellectual
property rights.

Government Efforts
--------------

8. (U) To meet the former TRIPS deadline of December 2005,
Burma began drafting new IP laws, with technical assistance
from WIPO and WTO. The draft legislation includes
trademark, patent, copyright, and industrial design laws.
As a least developed country member of WTO, Burma is now
obliged to meet its TRIPS obligations by 2013. We have
provided informal guidance from USPTO to assist GOB
drafting efforts. The GOB had initially indicated it would
pass the IPR law in early 2006 and others later. However,
the Attorney General now plans to draft all four laws and
their implementing regulations together before the 2013
deadline.


9. (U) A Committee for the Implementation of the
Intellectual Property System, formed in July 2004 and
chaired by the Prime Minister, guides drafting and
implementation efforts. The Committee has twenty-five
members, including nineteen ministers, the Chief Justice,
the Attorney General, Rangoon's Mayor, and the President of
the Chamber of Commerce. A number of Rangoon workshops has
assisted the process, including:

- The WIPO National Seminar on Intellectual Property,
jointly organized by the Ministry of Science and Technology
and WIPO, October 22 to 23, 1997;

- A seminar on the "Legal Implications and Myanmar's
Obligation to WTO Agreement", co-organized by the National
AFTA Unit, the Ministry of Foreign Affairs of Singapore and
the International Trade Institute of Singapore, September
17 to 19, 2001;

- A presentation by officials of Attorney General's Office
on the "Basic Concept of Intellectual Property Rights" at a
seminar on development of automobile manufacturing
technology, May 10, 2003;

- A workshop on implementation of agreements on technical
trade-related copyright co-organized by the Ministry of
Commerce and WIPO, June 28 to 29, 2004;

- A workshop on Intellectual Property co-organized by WIPO
and WTO, February 3 to 4, 2005;

- An Intellectual Property Rights seminar organized by
WIPO, April 25 to 26, 2005;

- Presentations by legal consultants on "Intellectual
Property System and Its Enforcement in Myanmar" and
"Safeguarding the Trademark, Safeguarding the Venture" at
the Myanmar Computer Professional Association (MCPA) on
June 18, 2005;

- A workshop on Intellectual Property Rights organized by
WIPO, August 20 to 25, 2005;

- A seminar on Copyright Protection co-organized by Asian
Pacific Cultural Center for UNESCO (ACCU) and Myanmar
Writers and Journalist Association, September 7 to 9, 2005;

- A workshop conducted by the Myanmar Writers and
Journalist Association on copyright issues for lawyers,
writers and publishers on November 3, 2005.

- In addition, the Secretary of the Myanmar Writers and
Journalists Association, Maung Hsu Shin, is finalizing a
Burmese version draft of the Asian Copyright Manual for
distribution in country.

Printed Materials
--------------

10. (SBU) The most obvious infringement of IPR in Burma is
the reprinting and photocopying of books and other
publications without permission. The ruling military
regime strictly controls public access to information from
all independent media and information sources, so the unmet
public demand is great. All books must be reviewed by
government censors before publication, and books by local
writers also need official permission from the Ministry of
Information to be published. With no effective means to
protect copyrights, there is no incentive to obtain the
legal rights to publish foreign works in Burma. Importers
also have difficulty getting permission from the Scrutiny
Board to import authentic books and magazines. They are
required to submit advance copies, apply for import
licenses (a very lengthy process),and submit the books for
further review upon arrival. The authorities censor most
publications heavily and impose an outright ban on many
books and other materials, particularly those that make any
mention of past or current conditions in Burma. The people
of Burma remain avid readers, but the only way most are
able to access outside information is via smuggling, black
market sales, and illegal photocopying.

CDs, DVDs and Computer Software
--------------

11. (SBU) Poor IPR protection of music and films has a
relatively minor impact in Burma because the market for
counterfeit goods in this low-income country is very small
and because inadequate infrastructure (bad roads, expensive
power supply, unreliable supply) make establishing
production facilities unattractive. Most of the limited
domestic manufacture/trade of counterfeit CDs and DVDs is
linked to the drug syndicates that operate in areas outside
of GOB control in the Golden Triangle region of Shan State
in eastern Burma.


12. (SBU) The everyday use of pirated software throughout
Burma, however, is widespread. Local distributors openly
make copies of the pirated software (primarily brought in
from Malaysia) using CD writers and then sell the products
to the public for 40-50 cents per CD. Two factories
manufacture blank CDs, one in Rangoon (run by Sony
representative TMW Co.) and one in central Burma run by a
Sino-Burmese company. The two factories produce rewritable
blank CDs and local music CDs and VCDs. The demand for
computer software in Burma is too low for mass production;
demand can be met individually by using CD Writer programs.
Most legal and pirated entertainment CDs, VCDs, and DVDs
come into Burma from China. Chinese quality is better, and
it is considered cheaper to import Chinese products than to
reproduce them locally.


13. (U) Government offices are required to use legal
software on any projects for international organizations,
such as the UN and JICA. Since there is no authorized
dealer for computer software in Burma, there is little
incentive to buy legal software (through an agent who
purchases it from Singapore). Owners of the legal product
face further challenges in getting regular legal updates
from Singapore (which requires additional payments to the
agent). Most notebook computers sold in Burma come with
legal software pre-installed by the manufacturers. Until
avenues for legal software purchase appear in Burma, most
computer users in Burma will continue to rely on the
illegal copies and the black market to meet their minimal
IT needs.

Villarosa