A Song By Any Other Name

By Sam Stubblefield 30 June 2016

RANGOON — Cover versions of popular hits are common the world over. In Burma, the art of the cover song—known as copy thachin—has been taken to new heights. Some would argue that Burma’s copy thachin are not technically even cover songs, but artistically significant creations in their own right due to their unique Burmese-language lyrics and vocal arrangements.

With the emergence of a new legal framework for the protection of intellectual property rights (IPR) in Burma, the future of this “copy song” tradition is being called into question.

The Tradition of Copy Thachin

Heather MacLachlan—author of “Burma’s Pop Music Industry: Creators, Distributors, Censors”—describes a copy thachin song as one which “features melodies, harmonies, and timbres copied more or less exactly from an English-language hit song; the lyrics of copy thachin are always sung in Burmese, and these lyrics are not a translation of the original English.”

Copy thachin songs are musical covers, but the Burmese language lyrics are new creations and may carry a totally different meaning to the original lyrics.

In Burma, copy thachin exist purely in the pop idiom, and are considered to be essentially distinct from Burmese classical music. For the most part, people in Burma are “not interested in fusion genres” MacLachlan adds; with copy thachin “the performers’ goal is to reproduce the original sounds exactly, so they won’t add any local sounds.”

The act of “localizing” and bringing new significance to foreign musical compositions with Burmese language lyrics is at the core of the copy thachin tradition.

In recent years Burma’s music industry has witnessed a variety of changes, and the tradition of copy thachin has been on the decline. This shift away from “copy songs” is due to a number of factors, according to MacLachlan.

MacLachlan highlights three main drivers of the shift: a new generation of musicians who place a high value on producing their own “original” music, the influence of foreign music producers who dislike copy thachin on principle, and a growing awareness of musical copyright with an understanding that Burmese musicians may face legal repercussions when they sell albums containing copy thachin or play them at concerts.

Burma’s Emerging IPR Legal Framework

The 1914 Copyright Act remains the law of the land governing artistic creations, including musical compositions. This Act does not include any protection for foreign copyright, although the Burmese government is party to a number of international agreements that contain elements relating to IPR, and is in theory required to provide foreign and domestic IPR holders a basic level of legal protection.

Burma acceded to the World Trade Organization (WTO) and signed the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement in 1994, joined the Association of Southeast Asian Nations (Asean) in 1997, and became a member of the World Intellectual Property Organization (WIPO) in 2001—all of which include requirements related to the legal protection of IPR.

Under the Thein Sein administration, the Ministry of Science and Technology was charged with drafting a range of new laws and regulations relating to IPR. In July last year, the Ministry issued draft IPR laws, but to date they are stalled at the draft stage.

“The draft law has already been sent to the parliament. The progress of the discussion at the parliament cannot been seen from outside,” Shimpei Yamamoto, the managing director of IPR issues at the Economic Research Institute for Asean and East Asia, told The Irrawaddy late last year.

“I am optimistic about the progress. An IPR specialist from the Japan Patent Office is now stationed in the Ministry of Science and Technology, helping them to pass the IPR law and establish an IP Office [in Burma],” he said.

Jakub Ramocki, of the Asean IPR Small and Medium Enterprise Helpdesk, told The Irrawaddy that strong IPR protections are a very important consideration for businesses looking to invest in Burma.

“The last decade has witnessed a fundamental growth in the importance of the value of IP assets in business,” he said. “Companies often do not realize the potential lying in intellectual property such as software, in-house databases, brands (even those not registered), reputation, goodwill, supplier lists, customer lists, recipes and/or formulas, and production secrets.”

“These are all IP assets that have value, and can and should be properly managed since they build an image of a company, give competitive edge and influence the value of an enterprise,” he said.

The unwillingness of some foreign companies to invest in Burma without clear IPR laws was reiterated by Eric Rose, lead director at Herzfeld Rubin Meyer & Rose Law Firm’s Rangoon office.

He told The Irrawaddy, “Without [Burma] adopting its WIPO-advised draft IPR laws, including the revised copyright statute, which have continuously been revised for years in various government agencies, there is no chance that foreign investors, or their lawyers, could legally enforce nationwide the protection of their copyrights in [Burma].”

The reasons for the delay in bringing the draft IPR laws into force are not entirely clear. Although, given the wide-ranging impacts that this new legal framework will have on Burma’s economy, perhaps careful consideration is warranted.

Copyright Proponents

Proponents of strong IPR enforcement claim that these laws benefit musicians, as well as others in the music business.

Peter Fowler, the regional intellectual property attaché for Southeast Asia at the US Embassy in Bangkok, told The Irrawaddy, “The enactment of a new Copyright Law will have an immediate impact in providing relatively modern legal protection for a full range of artists, composers, performers, and music industry businesses who want to establish legitimate business models.”

He concluded that the new IPR Laws would provide “a stronger tool to both legitimate rights owners and law enforcement officials to go after music pirates.”

Min Tayza Nyunt Tin, an IPR expert with MN Associates Law Firm, agreed that the current lack of an IPR legal framework is bad for musicians because “there is no chance to protect their creation of artistic works.”

“I heard that there are a lot of great local musicians creating very original music in [Burma],” said Shimpei Yamamoto of the Economic Research Institute for Asean and East Asia, adding that they would be “happy because an IPR law of [an] international [standard] can be a good opportunity for them to expand their market outside of [Burma].”

Neil Turkewitz, from the Recording Industry Association of America, noted the potential for a strong IPR framework in the culture industries to kick-start wider economic development, saying, “Effective copyright protection promotes economic development, creates jobs and fuels cultural diversity by creating financial incentives for investing in cultural production.”

As Burma’s IPR legal framework slowly emerges, Fowler said musicians and the music industry face two main challenges: “getting paid for their work so that they can be financially rewarded for their creative intellectual property, and educating the public and consumers—who in [Burma] are accustomed to not paying very much, if anything, for music—as to why stronger copyright protection and enforcement is good for [Burma], both culturally and economically.”

Fowler added, “The best way to approach public awareness and education is to conduct extensive public campaigns that reach average consumers and users of music and, if needed, to take legal action by filing civil infringement actions against larger scale commercial pirates/infringers who do not comply with the new law voluntarily.”

Balancing IPR Protection With ‘Fair Use’

On the other side are those urging caution, pointing to potentially negative impacts on creative expression with the development of wide-reaching IPR laws.

Peter Jaszi, a law professor at the Washington College of Law at American University, told the The Irrawaddy that “musicians and composers can also suffer from too much IPR.  Because everything new incorporates elements that have gone before, too much copyright can burden, inhibit, or distort new creativity.”

IPR and copyright operate within the wider economy, and often reflect structural power imbalances and inequalities present in the socio-economic arena. Sometimes, laws that are framed as protecting the rights of musicians actually work more to benefit the record companies producing and distributing the music.

“It’s worth noting that, in practice, the real benefits of IPR protection for music tend to be unevenly distributed in most places in the world—that is, the lion’s share usually go to the producers who have contractual deals with other members of the music-making community,” said Jaszi.

“If justice for musical-composers were a real goal, it would be good to include some language in the statute that limits or regulates the terms of such contracts,” he said.

Jaszi recommends “countries that are writing new, strong copyright laws balance the additional protections provided with enhanced ‘limitations and exceptions,’ like the fair use doctrine in the US [which] interestingly and significantly is a topic on which the TRIPS agreement is entirely silent. But that doesn’t mean that it shouldn’t be part of the legislative deliberation.”

“Two Sides of the Same Coin”

As seen with the prevalence of copy thachin, Burma could be considered a net importer of copyrighted music, but with local “value-added.” It is very possible that new strong IPR laws will mean an end this unique form of artistic expression.

Finding the correct balance between protecting the ability of musicians to get paid for their musical production and encouraging creativity and innovation through the creative commons is crucial.

“A well-functioning copyright system fuels both production and access, which are not competing forces but two sides of the same coin. It is a tool of economic emancipation, and an engine of free expression,” said Turkewitz of the Recording Industry Association of America.

“The biggest challenge not only for musicians but also for all the people in [Burma] after passing IPR law is awareness of IPR,” said Yamamoto of the Economic Research Institute for Asean and East Asia.

He added, “If they do not learn what IPR is they cannot utilize it or, in the worst case, they may infringe IPR without recognizing it and get into legal trouble.”

In the past, musicians from Burma have run against the limits of copy thachin when they travelled abroad to perform for Burmese diaspora audiences, as Heather MacLachlan has documented in numerous interviews with musicians.

“When they are in the US, they try not to play any of their copy thachin, because they’re worried that they might get in legal trouble if Americans were to hear them. No problems so far, but they worry about it,” she said.

Soon they may need to worry about it at home as well.

Sam Stubblefield has been living in Southeast Asia for nearly a decade and is a keen watcher of political economy and culture in Burma.