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Cablegate: Burma: 2008 Special 301 Review

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RR RUEHCHI RUEHDT RUEHHM RUEHNH RUEHTRO
DE RUEHGO #0095/01 0390617
ZNR UUUUU ZZH
R 080617Z FEB 08
FM AMEMBASSY RANGOON
TO RUEHC/SECSTATE WASHDC 7145
RUCNASE/ASEAN MEMBER COLLECTIVE
RUEHGG/UN SECURITY COUNCIL COLLECTIVE
RUEHBJ/AMEMBASSY BEIJING 1715
RUEHBY/AMEMBASSY CANBERRA 0879
RUEHKA/AMEMBASSY DHAKA 4752
RUEHNE/AMEMBASSY NEW DELHI 4439
RUEHUL/AMEMBASSY SEOUL 7970
RUEHKO/AMEMBASSY TOKYO 5531
RUEHCN/AMCONSUL CHENGDU 1337
RUEHCHI/AMCONSUL CHIANG MAI 1365
RUEHCI/AMCONSUL KOLKATA 0204
RUEATRS/DEPT OF TREASURY WASHDC
RHHMUNA/CDR USPACOM HONOLULU HI
RUEHGV/USMISSION GENEVA 3496
RHEHNSC/NSC WASHDC
RUCNDT/USMISSION USUN NEW YORK 1315
RUEKJCS/SECDEF WASHDC
RUEHBS/USEU BRUSSELS
RUEKJCS/JOINT STAFF WASHDC

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

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