‘They Realize They’re Stuck with Laws and Concepts That Are Dated’

By Nyein Nyein & David Hopkins 17 February 2015

A set of intellectual property (IP) laws, covering patent, copyright and trademark protections, is slated to go before Burma’s parliament by mid-2015. The legislation, currently being drafted by Burma’s Ministry of Science and Technology, is expected to bring Burma into line with its obligations under the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and provide a potential boost to foreign investment. The country’s current IP legal framework is largely non-existent, or derived from vague, colonial-era regulations.

Peter N. Fowler is the Regional Intellectual Property Attaché for Southeast Asia, based within the US Foreign Commercial Service at the US Embassy in Bangkok, Thailand. He spoke with The Irrawaddy on the challenges of establishing an effective IP regime in Burma, the potential domestic benefits of such laws and the role of patents in the drug industry.
Question: Do you have an update on the IP laws currently being drafted by the Ministry of Science and Technology?

Answer: In mid-January… the word from the Minister of Science and Technology was that the draft IP laws have now left the attorney-general’s chambers and gone back to the ministry for some fine-tuning. [The minister] said he would like to be able to submit [the draft laws] to the cabinet by the end of February at the latest. He hopes that the laws will be introduced to the Parliament so that they can be considered in the June session.

Q: What are the challenges to establishing an effective IP regime in Burma?

A: As soon as the laws are in place, the first biggest challenge is creating a workable, efficient, responsive national IP office. Burma is the only country in Asean that doesn’t have a national IP office. So people can start filing applications and can start seeking protection for their patents, designs and trademarks. But you can’t do that overnight. I suspect that it will take a year to a year and a half to get a functioning, fully responsive office up and running.

The next challenge is putting into place a more integrated, comprehensive enforcement system for IP. There are a lot of players involved: the courts, the attorney general’s chambers, the prosecutors, the police, and customs. It’s a big challenge because all of those organizations…have no real experience with IP. We’ve done some educational seminars and trainings with the [High Court] and other district court judges so far and they’re very eager to learn about intellectual property. But they realize they’re still stuck with laws and IP concepts that are dated.

Q: Are there any regional examples that Burma should follow in terms of effective IP regimes?

A: I think several actually. The Philippines has developed a very good, integrated enforcement system. They have done a very good job in integrating their enforcement agencies, from investigation to police to customs, so that they work together.

Q: What has been the US role in helping to develop an IP regime in Burma?

A: We’ve offered our assistance in creating an IP office. We’ve offered IT expertise to help them set up systems. We’ve offered a lot of assistance on copyright and enforcement protection and judicial education. The US Patent and Trademark Office has coordinated with other agencies like the Japanese patent office, the Korean property office, the World Intellectual Property Organization and the EU…so that we aren’t duplicating efforts.

Q: What are the potential domestic benefits of effective IP laws?

A: The greatest immediate benefit is to protect the creations, inventions and designs of creative and innovative Burmese people. Those aren’t currently really protected. In the area of copyright, composers, authors, filmmakers, poets and singers will have protection in a way they don’t currently have. Not only so that they can realize the commercial value of their work and benefit from it with royalties and licensing fees, but also to be able to enforce their rights against people who are making fake DVDs, copying things and uploading music etc.

Burma doesn’t have a trademark protection law. The 11-12,000 brands that have been registered—they’re on a list—they will need to apply for actual trademarks. Some companies have held off investing because they can’t yet protect their trademark. For many foreign companies, their trademark is a really, really important asset. If they can’t adequately protect it, they are very hesitant to invest in a market and distribute their products.

Q: Some business people or other groups in Burma may be reluctant to accept the idea of strong IP laws, how do you overcome this?

A: That’s one of the biggest challenges: changing attitudes. That is a crucial component to creating an effective IP system. You can’t just have laws and try to enforce them when the public doesn’t really understand why. I think a big challenge will be…to help educate, create awareness, do public information campaigns about the value of intellectual property—why these laws are being put into place, and what the benefits will be. My office will be offering to do this [education programs], we’ll work with our embassy in Rangoon, I think the EU will do the same, so will the Japanese.

Q: How can Burma institute strong IP laws while still ensuring widespread access to products such as low-cost medicines? Should Burma’s IP laws be flexible in this respect?

A: Every IP system has certain flexibilities and balances in it… In the area of patents, there is always a balance. Sometimes people focus on patents being a monopoly; well, yes, it’s a limited exclusive right for 20 years, but after that it becomes open to the public domain and anybody can manufacture it.

The whole generic drug industry exists because drugs and medicines that used to be under patent production become available for anybody to manufacture, assuming they meet certain standards. So there are balances. Almost every developed country has in place anti-trust or competition laws that balance against exclusive rights. I honestly don’t believe that access to medicine will be inhibited or unfairly restricted.

Some estimates are that anywhere from 40-60 percent of the medicines and medical devices on the market in Burma today are counterfeit. Having stronger IP protection will help get those off the market. Therefore by enforcing trademark law you are simply going to have a safer market place for consumers. I will say that legitimate, genuine medicines may end up costing more than fake medicines. But you don’t really want people taking the counterfeit medicines in the first place.

Q: How important are the IP laws ahead of the ASEAN Economic Community, due to go into effect at the end of 2015?

A: For Burmese, as the AEC becomes a reality, without having their own IP house in order, they simply aren’t really able to enter into business—into distribution agreements and licensing agreements—with others [in the region]. For example, if a Burmese company manufactures some kind of appliance or goods and wants to enter into a distribution agreement with people in Malaysia or Thailand or Vietnam, the first thing the foreign distributor will say is, do you have a registered trademark for your product? You negotiate for various IP rights: what kind of royalties, what kind of licensing fees, what kind of distribution arrangement, who has the right to file the trademark registration for that product in other countries etc.

In today’s age, doing commercial deals of any size involves some degree of IP…There’s an expectation that as Burmese want to do business in the rest of Asean, that they have their own IP house in order.