BURMA: 2008 SPECIAL 301 REVIEW

UNCLAS SECTION 01 OF 03 RANGOON 000095 SIPDIS SIPDIS STATE FOR EAP/MLS, EEB/IPE PACOM FOR FPA TREASURY FOR OASIA:SCHUN E.O. 12958:N/A TAGS: ECON ETRD KIPR BM SUBJECT: BURMA: 2008 SPECIAL 301 REVIEW REF: STATE 8475 RANGOON 00000095 001.2 OF 003 ¶1. Summary: With other Least Developed Countries, Burma received an extension until July 2013 to provide protection for trademarks, copyright, patents and other intellectual property under the WTO TRIPS agreement. The GOB has completed nine drafts of new IPR Laws, but since the WTO's extension of its TRIPS deadline, has taken no further action. In the absence of new legislation, Burmese lawyers apply old laws, which provide minimal trademark and copyright protection. Awareness of IPR issues in the general public is low, as is the level of economic activity that utilizes protected intellectual property. Post does not recommend that Burma be put on the Special 301 List. End Summary. Endless Drafting of IPR Laws -------------- ¶2. The GOB's existing copyright law dates from British colonial rule in 1914. Its patents and designs acts, which also date from before World War II, are no longer enforceable. Burma does not have a trademark law, although government law officers say that provisions to safeguard trademarks and property marks exist in the Penal Code and the Specific Relief Act. Sources in the Attorney General's Office tell us they have completed nine drafts of new IPR Laws since 2004, with input from the Ministries of Information, Commerce, Industry, and Science and Technology, and with technical assistance from WTO and WIPO. The drafts include a new Trademarks Law, Copyright Law, Patents Law, and the Industrial Design Law. However, after the WTO extended the deadline for LDC compliance to 2013, the GOB halted action on its IPR drafts. Other Legal Protection -------------- ¶3. With no proper IPR law, police and customs authorities use the following acts and laws to charge violators: - Myanmar Penal Code (1861) - The Specific Relief Act (1877) - The Sea Custom Act (1878) - The Registration Act (1909) - Myanmar Foreign Investment Law (1989) - Myanmar Citizen Investment Law (1989) - The Television and Video Law (1996) - The Computer Science Development Law (1996) - The Electronics Transaction Law (2004) Optical Media Piracy -------------- ¶4. No specific laws exist to make optical media piracy (CDs, VCDs and DVDs) illegal. Local lawyers told us that the existing copyright law and the 1996 Television and Video Law extend limited protection to optical media. The Television and Video Law from 1996 prescribes penalties for infringement of copyright in Television and Video. Infringement is defined as copying, distributing, hiring or exhibiting for commercial purposes a censor-certificated videotape without the permission of the license holder. Punishment is three years imprisonment and/or a maximum K.1,000,000 (approx. US $800) fine. Lawyers said the Television and Video Law protects only videotapes and there is no amendment for CDs, VCDs, or DVDs. ¶5. Many Burmese copy and sell locally produced audio CDs, karaoke and movie VCDs, and DVDs without permission. On rare occasions when producers and artists complain, police have raided shops and RANGOON 00000095 002.2 OF 003 arrested violators. Police do not often take action against dealers in Rangoon and other major Burmese cities who sell pirated foreign CDs, VCDS and DVDs, produced mainly in China. Police raids are often politically motivated (an effort to confiscate anti-regime or politically sensitive movies and music),rather than part of an effort to protect IPR. Use/Procurement of Government Software -------------- ¶6. The GOB procures computer equipment from private companies, with pirated software already installed. Legitimate software is not often available in Burma, and most GOB Ministries cannot afford to pay and install such software. ¶7. Two laws cover computers: - The Computer Science Development Law imposes penalties for import or export of any type of computer software or any information proscribed by the Myanmar Computer Science Development Council under section 6 (g) of the law, as well as penalties for using information technology to infringe on intellectual property rights. - The Electronic Transactions Law covers infringement of copyright in computer programs. It prescribes penalties for sending, hacking, modifying, altering, destroying, stealing, or causing loss and damage to the whole or part of the computer program dishonestly. The offender can be punished with imprisonment, fine, or both. TRIPs Compliance and Other IP-related issues -------------- ¶8. No legislation exists to protect geographical indicators, designs of integrated circuits, plant varieties, or undisclosed pharmaceutical test data. The following laws protect pharmaceuticals and agricultural chemicals, but, according to local lawyers, enforcement is ineffective. - National Drug Law: According to the National Drug Law (1992),only registered drugs can be imported into Burma. For drug registration, detailed specifications, drug samples, and lab results must be submitted together with the application. Punishment for importing fake drugs is a fine of K.5,000 to K.50,000, or imprisonment for seven years, or both. Counterfeit drugs, mostly from China, have become a major problem. - The Pesticide Law (1990) and the Fertilizer Law (2002): According to the law, pesticides and fertilizers can be sold or distributed only after registration. Applicants must submit relevant specifications and lab results for registration. ¶9. No legislation or regulations exist to protect traditional knowledge or expressions of folklore, or to address issues related to genetic resources, including access and benefit sharing. Producers of traditional medicines are encouraged to register drug information, including ingredients and the production process, with the Burmese Food and Drug Administration. The Food and Drug Administration does not offer data protection for traditional medicines. Production, Import and Export of Counterfeit Goods -------------- -------------- ¶10. Garment manufacturers refute the allegation that Burmese factories produce counterfeit brands. Owners of garment factories insist that they dare not accept orders to produce counterfeit brands and also that the low quality of garments manufactured in Burma cannot meet the required specifications for counterfeit brands. RANGOON 00000095 003.2 OF 003 ¶11. Production of counterfeit goods in Burma is rare. A few earlier cases of production of counterfeit local medicines were resolved when police and Ministry of Health officials took legal action against the offenders. The Ministry of Health occasionally posts warnings in local media when it finds counterfeit foreign medicines from neighboring countries in the market. Burma does not export counterfeit items, but many counterfeit electronic goods come into the country, primarily over the China border. According to lawyers, Burma can use its Sea Customs Act to penalize importers and exporters of counterfeit goods, but Customs officials rarely apply it. Enforcement -------------- ¶12. Organizations including WIPO, WTO, UNESCO (ACCU), Attorney General Office, Ministry of Commerce, Department of Science and Technology, Myanmar Computer Professional Association (MCPA),and the Myanmar Writers and Journalist Association have sponsored seminars and workshops on IPR issues in Rangoon and Mandalay. Overall IPR awareness in the population remains very low. ¶13. According to the checklist for the implementation of item 2.7.2(F) of the Hanoi Plan of Action on the implementation of the TRIPS agreement, Burma is the only country which has not implemented any of the required articles. Treaties -------------- ¶14. According to local lawyers, the GOB has not implemented the 1996 WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). Comment -------------- ¶15. Since the manufacturing sector is moribund and few American products are available in Burma, the impact on U.S. firms of the country's weak IPR laws and poor enforcement is minimal. The overall level of business activity and number of business connections to the international marketplace are also very low. We already impose numerous sanctions on Burma, including on imports from Burma, so our negotiating leverage would be minimal. Post does not recommend Burma be added to the Special 301 List. Enforcing IPR laws will not become a GOB priority until political reforms allow the Burmese enough freedom to enter the global economy. VILLAROSA