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December 11, 2019

Addressing the question of intellectual property in the reforms process

  • By Aung Htoo

 

Long-awaited and much-needed bills on copyright, trademarks, industrial design, and patents have been passed into laws just a few months apart in January, March, and May this year.
The Union Parliament of Myanmar finally passed the Myanmar Industrial Design Law (“IDL”) on 31 January 2019 as a Pyidaungsu Htuttaw Law No. 2/2019 and it was signed by the President of Myanmar on the same day. However, it will be effective only after a notification is issued by the President of Myanmar.
Same day on 31 January, the Trademark Law was passed into legislation by the Pyidaungsu Hluttaw vide Law No. 3/ 2019.
Moreover, the Pyidaungsu Hluttaw Law No. 7/2019 – – Myanmar’s Patent Law – -was enacted on 12 March 2019, providing a framework for the protection of inventions related to products and processes. This is the first legislation specifically addressing the protection of patents in the history of Myanmar.
The Copyright Law on Literary and Artistic Works in Myanmar was enacted on 24 May 2019 vide Law No. 15/2019, and will be promulgated soon. Myanmar is currently not a signatory to the Berne Convention for the Protection of Literary and Artistic Works, or any other international IP rights treaty. With expectation for more than ten decades, the filling up in the mainstream of reform process with regards to intellectual property of Myanmar, the copyright is unique because it is covered under the century-old Copyright Act (1914). Passing such laws in Myanmar is tantamount to filling in the necessary gap in the economic environment that is taking velocity to develop.

Legality and scope
The World Trade Organization (WTO) is the only global international organization dealing with the rules of trade between nations, and that the Copyright Law of Myanmar is in line with the world body.
Laws are in line with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which is an international legal agreement between all the member nations of the World Trade Organization (WTO).
All the precondition, proviso, and prerequisite of Myanmar are in conformity with the International Conventions such as that of the Paris Convention; the Bern Convention; the Madrid Agreement; and the Madrid Protocol.
Myanmar is poised to ratify, sign or give formal consent to the relevant treaty, contract, or agreement, making it officially valid.
With the view to keep the law active and move into force, necessary steps are being taken for the realization of procedure, rule, regulation, precept, statute, ordinance, and norm. Relevant officials are making the documents to be ready in time for each and every law for the signing of the President.
In the past, the task was in the domain of the Ministry of Science and Technology (Myanmar) under the Ministry of Education.
Time has changed, and that the Ministry of Commerce will be responsible for overseeing the four intellectual property rights laws namely for patents, industrial designs, trademarks, and copyright. The ministry is planning to set up a central committee, a copyright agency and copyright directorate.
Myanmar has been a WTO member since 1 January 1995 and abides the TRIPS, and also a member of GATT since 29 July 1948. Therefore, the Ministry of Commerce is not a complete and total stranger to such international bodies in the context of Intellectual Property.
Myanmar is the largest country in mainland South-East Asia with a vast total land and became a 176th member country of WIPO (The World Intellectual Property Organization) on 15 May 2001.
The prime and most important WIPO function is administering multilateral international conventions, i.e. depositing treaties, states’ instruments of accession, of conflicts settlement, ensuring treaties review, applying the registration functions for treaties reviewing the international registration of IP objects. Myanmar equipped herself in fulfilling these requirements.
In 1984, Brunei became ASEAN’s sixth member and on 28 July 1995, Vietnam joined as the seventh member. Laos and Myanmar joined two years later on 23 July 1997. The ASEAN Working Group on Intellectual Property Cooperation (AWGIPC) is the sectoral group responsible for IP issues in the region. The AWGIPC was established in 1996, pursuant to the ASEAN Framework Agreement on Intellectual Property Cooperation, which was signed by ASEAN Member States in Bangkok, Thailand on 15 December 1995.

Leaning on others
Unfortunately, Myanmar, at that time, was yet to enact local relevant laws for interacting with the international bodies with regards to the IP issues. With those poor backdrops, Myanmar has had to rely on the laws and rules of India under the British colonial era.
Depending and hanging on others, Myanmar had embraced the Registration Act of 1908; the Copyright Act of 1914; the Myanmar Patents and Designs Emergency Provision Act of 1946; the Indian Penal Code; and the Civil Laws of relevant ministries.
Over the years, the Ministry of Science and Technology teamed up with the Office of the Attorney-General and relevant ministries had worked out the compilation and drafting of IP Law beginning 2003.
At present, Intellectual Property Department is under the Department of Research and Innovation, Ministry of Education. It implements to emerge Intellectual Property Laws and plans to administer these IP laws after promulgating by undertaking the staff trainings to be skillful and quality for the future IP Office.

Aim, objective and implementation update
Over the year, the four IP laws for Myanmar all passed in early 2019 have been entrusted to the Ministry of Commerce for implementation.
Tasks to be implemented with regards to IP matters includes such as that of implementing regulations; that of the structure of the IP Office comprising the IP Central Committee (Policy); that of the IP Agency (Implementation) and the IP Department (Registration and Administration); that of the Trademark, Design, Copyright, Patent and Legal, Training, IT and other divisions; that of the finalizing the move from the Ministry of Education into the Ministry of Commerce with offices in Nay Pyi Taw, Yangon and Mandalay; that of the recruitment of several hundred staff for the IP department; that of the plan for a soft opening and launching of the trademark division at the end of 2019, and that of for the grand opening in the middle of 2020.
The Myanmar Industrial Design Law and the Copyright Law on Literary and Artistic Works will be enforced at the end of 2020.
The division and office of the new Myanmar Patent Law have been marked for opening at the end of 2021.It may be advisable that the esteemed companies wishing to register for Trademark Law should equip themselves to be ready at the beginning of 2020 for soft opening. The method and manner of Trademark Registration are similar to the Myanmar Companies Registration through e-Government system.
WIPO has created IPAS (Industrial Property Administration System), a workflow-based and highly customizable system that supports all the major business processes of an IP office. All the registration would be accepted online through the Internet.
Those who are not familiar with the digital application system would be facilitated and assisted at the Myanmar IP Offices.
In the implementation of such totally unaccustomed activities, the expertise of the Non-Governmental Organizations (NGOs) and the Civil Society Organizations (CSOs) are to be solicited for the relieve and ease of the relevant companies. Therefore, the NGOs and the CSOs are to get involved in the public awareness campaign by providing training to the service providers and knowledgeable representatives with regards to the IP matters in the country.

Providing Protection
The purpose of Copyright Law in Myanmar is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. It includes such as that of the preservation and protection effectively of all the copyright; that of the elevation and increase of investment and trade; that of the protection of the misuse of copyright; that of the establishment of free and fair market economic competition system; that of the support and encouragement over the innovation and creation; that of the elimination of fake and forged commodities for the safety and benefits of the public; that of the protection of locally produce items of Myanmar and in preserving quality of goods in the market competition in the foreign trade; that of encouraging and supporting the creativity of products for market entry.
These IP Laws ultimately protect the interests of small, the medium and large enterprises in Myanmar including companies and economic enterprises. Moreover, the laws protect the copyright interest of the companies based in foreign countries as well as their trademarks effectively.
Since the term of the first Pyithu Hluttaw, the changes and reforms have been carried out from the centrally planned economic system to market- oriented economic system with the democratic transition covering politics, administration, economic and social spheres.
Entering the global arena, Myanmar cooperated and worked with international communities with greater impetus. With the changes of market economic system, the country enjoys economic development to a certain extent.
During the time of National League for Democracy administration beginning 2016, the reform and restructuring have been rolled out in top gear.
On the political frontline, the National League for Democracy (NLD) party has vowed a brighter future for the nascent democracy and a commitment to peace and a federal Union, and for national reconciliation.
The government has presented its (12) points economic policy on 29 July 2016, highlighting the importance of developing a market-oriented system “in all sectors” and establish an economic framework in support of national reconciliation.
The Myanmar Sustainable Development Plan (MSDP) (2018-20130) is the national development vision – – a vision that finds resonance in the global Sustainable Development Goals (SDGs).
The MSDP delivers this strategy, providing an overall framework for coordination and cooperation across all ministries, and all States and Regions to forge a common path towards the emergence of a prosperous, peaceful and democratic Myanmar. The Myanmar Sustainable Development Plan (MSDP) provides a long-term vision; a vision of a peaceful, prosperous and democratic country.

Opening to the world
With a view to attracting foreign direct investment, the new Myanmar Investment Law 2016 (MIL) has been enacted on 18 October 2016. The new MIL is a consolidation of the Myanmar Citizen Investment Law (2013) and the Myanmar Foreign Investment Law (2012).
Ministry of Investment and Foreign Economic Relations is formed to fulfill the requirement of the State and the people according to international, regional and the country’s geo-economic situation.
With the idea to grant easier access for business, the decentralization process has been realized, and that some of the investments and businesses are being approved by state and regional governments to a certain extent.
The Government guarantees to the foreign investors fair and equitable treatment in doing business, and that the reciprocal protection clauses are being allowed to sign on bilateral basis. Policy to enhance the investment has been encouraged and that local and foreign investments are being cordially invited.
According to Notification 48/2018 of Office of the President, Republic of the Union of Myanmar on 21 June 2018 Myanmar Companies Law takes effect in accordance with the Myanmar Companies Law section 1(b) on 1 August 2018.
Foreigners are allowed to venture up to (35) percent investment in the Myanmar Company, and that the company is regarded as local company. Adequate protection for the minority shareholders is also stipulated in the Myanmar Companies Law.

Endeavoring for the development
In collaboration with the World Bank, steps are being taken up and implemented in the business sphere for the ease of doing business. During the time of incumbent government, Myanmar is to move less than (100) place on the World Bank’s index for ease of doing business ranking, which cites several reforms including creating an easier environment for starting a business and greater protections for minority investors.
The Ministry of Commerce is providing support and encouragement in elevating the local and foreign trade, and also creating good business environment that is vital and necessary in the market economic system.
Moreover, the ministry is motivating, inspiring and stimulating in the sphere such as that of the private sector development; that of creating more job opportunities; that of advocating in the formation and development of SMEs; that of supporting for easing up in doing business; that of in urging and advising for the formation of business entrepreneurs associations; and that of eliminating and dismantling of illegal trade and replaced with legal and legitimate trade.
Supplement to the above endeavors, speedy implementation of Special Economic Zones are under way in Dawei, Kyaukpyu, and Thilawa.
The passing of bills such as the copyright, the trademarks, the industrial design, and the patents is the part and parcel of the ongoing reform process of the country. The laws could safeguard, secure and shield the businesses in the domain of SMEs and the local companies as well as foreign companies. Last but not least to say that the literature, the artistic creation, and the art work are well protected.
On the whole, I would like to conclude that Myanmar is sure to be considered as viable economic environment for investment, and to freely engage and deal as a reliable and trustworthy nation.
Translated by UMT (Ahlon)

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