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Intellectual Property Rights play a crucial role in any country’s economic or commercial arena. The owners or creators are entitled to the exclusive monopoly rights on their brand identity as well as the creations. The business owners and the artists tend not to carry on their functions and innovations in the countries that do not provide them the requisite protection. The exclusive rights can be given in the form of trademarks, copyrights, patents, geographical indications and industrial designs. The author tends to maintain the scope of the article confined to the copyright regime.
Copyright is the legal terms that is used for exclusive rights granted to the authors, artists and other creators for their creations. The monopolistic rights generally include copying, publishing, translating, adapting and altering, distributing, amongst others and are provided automatically post the creation of the concerned work.
Copyright protection before the latest law
The Myanmar Copyright Act 1914 prevailed till the time the country became acceded the TRIPS Agreement. The major disadvantage that the statute posed was difficulty faced by the foreign companies in getting their creations protected under the copyright regime. The Act outlined the copyright of original literature and dramatic work if: (a) in the case of published work, the work was first published in the country i.e., Myanmar and (b) in the case of an unpublished work, the author was a citizen of Myanmar or “within” Myanmar when the work was created. The act also provided that the actions against infringement are actionable in both criminal and civil courts. The owner of copyright has the requisite right to appeal to the courts to institute criminal proceedings against the infringer under the said act. The compensation set for the infringer was a fine not exceeding MMK 500. Making or processing counterfeited copies of plates is also punishable with a fine up to MMK 500, which is approximately EUR 0.38. For any other offence, the penalty was set at a maximum of MMK 1,000 and a penalty up to one month.
There was no specific mechanism and procedure for search, seizure and disposal of property which was related to copyrights. However, then, the provisions namely Sections 101 to 103 allow for any search to be made in the presence of at least two witnesses who are respectable inhabitants of the locality and will be required to provide an attested document for accuracy.
In relation to the term of copyright, the 1914 Act provided the protection of author’s life and fifty years after his/her death in cases of literature, dramatic, musical and artistic works. Moreover, in any case where there can be mechanical production of sound, the protection was granted for fifty years after the creation. However, the registration procedure was not provided in the 1914 Act but it was stated that the protection is automatic.
It is evident that there are certain discrepancies in the 1914 act and there was a need of new rules and regulations to ensure that the innovation and creations are protected in the country.
The new Copyright Law
On 24th May 2019, the Parliament of Myanmar passed the Copyright Law. The law clearly repeals and replaces the previous act of 1914. The draft law has been formulated with the help of the World Intellectual Property Organization (WIPO). The new copyright regime tends to protect the creations with the following principles:
- The first most notable feature of the new Copyright Law is that it explicitly provides protection to foreign works. However, such works are only protected if they are first published in Myanmar or published within 30 days of such publication, outside the territory. The country is not a signatory to the Berne Convention which ensures that the countries grant the same copyright protection as given to the nationals, regardless of where the work was published.
- The copyright protection in works such as literary, artistic, performances and phonograms created and published by the citizens of Myanmar and the works protected under a treaty on copyright protection to which Myanmar is a signatory, provided that the work should first be published in Myanmar and after 30 days of such publication, it is published outside the country, shall be automatic and without any registration.
- The act also provides that the literary and artistic works include written, oral, musical, choreographic, traditional expressions, works of print or applied art or any illustrations.
- Term of protection: The protection of literary works begins on the date when the work was first published and is extended to lifetime of the author and fifty years after his/her death. The works that are published under a pseudonym, audio visual works and collective works are protected since the date the work was published or made public till the period of fifty years. The works of applied art are protected from the date work was created till a period of twenty-five years. It must be kept in mind that the moral rights are with the authors for lifetime.
- The exclusive right to reproduce, translate, adapt, arrange, modify, distribute, sell, transfer or assign the copyrighted work shall be with the owners.
- The reproduction of a copyright work without any authorization of the rights holder under certain exceptions such as for educational or personal purposes shall be allowed provided that it does not impact the rights of any copyright owner.
- The law also provides the formation of certain collective management organizations, which upon the requisite approval, will have the authority to act on behalf of rights owners and to administer certain rights assigned to them.
- The act also provides certain offenses such as unauthorised reproduction or transmission for commercial purposes. The minimum penalties are imprisonment not exceeding one year and a fine which must not exceed MMK 1 million. The habitual offenders may be subject to imprisonment up to 10 years and a minimum fine of MMK 10 million.
The act also provides a provision for fair use including current events and the reproduction of current events as a part of education and research for personal use. Therefore, the new provisions are in consonance with the international standards and the requirements of foreign investors.
With the promulgation of the Copyright Law, which comes after the recent enactment of the new Trademark Law, Industrial Designs Law, and Patent Law earlier, the long-awaited passage of all four pieces of IP legislation in Myanmar is now complete. However, similar to the other three pieces of legislation, the effective date of the Copyright Law will be announced at a later stage, and applications for voluntary recordation of copyright are not yet being accepted while the administrative structures necessary to do so are still being established. It is recommended, however, by the office and experts that the prospective applicants must assess their copyright application under the new law, leaving behind the old law of 1914.
Author: Tanya Saraswat – a student at School of Law, Narsee Monjee Institute of Management Studies, in case of any queries please contact/write back to us via email email@example.com or at Khurana & Khurana, Advocates and IP Attorney.