Business Law Chapter 7 ..Intellecutral property.pdf
Transcript of Business Law Chapter 7 ..Intellecutral property.pdf
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Contents
Intellectual Property Law
Chapter VII Pages
7.0 Laws relating to Incorporeal Personal Property (Intellectual Property) 2
7.1 Law relating to Incorporeal Personal Property (Intellectual Property) in
Myanmar. 3
7.2 Definition of Intellectual Property under International Law 6
7.2.1 Copyright and Neighboring Rights 9
7.2.2 Trademark
12
7.3 Protection of Trademark Rights, Copyright, Patents and
Designs in Myanmar
15
7.3.1 Trademark Rights
15
7.3.1.1 Registration
19
7.3.1.2 Remedies for infringement
22
7.3.2 Copyright
27
7.3.2.1 Infringement of copyright
31
2
7.3.2.2 Term of Copyright
37
7.3.2.3 Ownership of Copyright
40
7.3.2.4 Civil remedies for infringement of copyright
40
7.3.3 Patentsand Designs
48
7.3.3.1 Patents under the TRIPs Agreement 1994
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Chapter 7
Intellectual Property Law
7.0 Laws relating to Incorporeal Personal Property (Intellectual Property)
Intellectual property is a valuable asset, which may be exploited in many
ways. Intellectual property is property in legal sense: it is something that can be
owned and dealt with. Intellectual property law is that area of law which
concern legal rights associated with creative effort or commercial reputation and
goodwill. There are several different forms of rights or areas of law giving rise
to rights that together make up intellectual property. They are copyright,
neighbouring rights, patents, registered designs, trademarks and trade libel.
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၏ ၏
7.1 Law relating to Incorporeal Personal Property (Intellectual Property) in
Myanmar.
၏
TheUnion of Myanmar once a British Colony naturally and inevitably
had to accept and apply the laws in English, enacted in the British era.At the
closing years of the 19th century, the modern Myanmar legal system emerged
under the British control rule replacing the traditional one.Evidently, its
development was in concurrence with British and Indian legal circumstances
then, and was not far left behind in the field of Intellectual Property (IP) from
the inception and up to the booming stage thereof. Relevant law as well as
official ruling recognizing and enforcing the principles of IP rights in Myanmar
of those periods looks very impressive and had timely developed to a substantial
extent. As time passed, those laws were not kept modified. Some existing laws
on or relating to Intellectual Property are as follows:
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၏
၏
(1) The Penal Code:
( )
(2) The Myanmar Merchandised Marks Act;
)
(3) The Registration Act;
)
(4) The Specific Relief Act;
)
(5) The Myanmar Patents and Designs (Emergency Provisions) Act, 1946;
) ) ၄၆
(6) The Myanmar Copyright Act
)
Myanmar is a founder member of WTO (World Trade Organization)
since its establishment on 1 January 1995, and there after also becomes a
member of ASEAN.
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)
၏
၏
Consequently, Myanmar has the obligation to respect and abide by the
provisions of the relevant treaties of such organizations in particular the TRIPs
Agreement and the ASEAN Framework Agreement on Intellectual Property. As
a result, all draft laws have to be reviewed and redrafted so as to ensure
compliance with international and intergovernmental obligations of Myanmar.
Establishing the new Ministry of Science and Technology and designating it as
the focal point to deal with intellectual property matters will help expedite the
outcome of the new laws.
၏ ါ
The Attorney General Office of the Republic of the Union of Myanmar is
now considering for drafting new IP laws specifically as
၏
-
(1) Trademark law,
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( )
(2) Copyright law,
)
(3) Patent law and,
)
(4) Industrial Design law to be in line with "Agreement on Trade-Related
Aspects of Intellectual Property Rights, mostly called TRIPs Agreement made
between World Intellectual Property Organization (WIPO) and WTO.
)
(TRIPs)
7.2 Definition of Intellectual Property under International Law
၏
Agreement on Trade-Related Aspects of Intellectual Property Rights
mostly called TRIPs Agreement made between World Intellectual Property
Organization (WIPO) and World Trade Organization (WTO).
)
WIPO had its origins in the 1883 Paris Convention for the Protection of
Industrial Property and the 1886 Berne Convention for the Protection of
Literary and Artistic Works. The Convention establishing WIPO was signed in
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1967 and entered into force in 1970. WIPO became a specialized agency of the
United Nations on 17 December 1974. The Berne Convention has been revised
several times (Berlin in 1908, Rome in 1928, Brussels in 1948, Stockholm in
1967 and Paris 1971).
(WIPO)
၆
၆
၄
) ၏
WIPO's objectives are:
-
to maintain and increase respect for intellectual property throughout the world,
(1) to favour industrial and cultural development by stimulating creative
activity and facilitating the transfer of technology and the
dissemination of literary and artistic works.
"Intellectual Property" includes two main branches:
-
(1) Industrial property (patents and other rights in technological
inventions, rights in trademarks, industrial designs, application of
origin, etc. ) and
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)
(2) Copyright and neighboring rights (in literary, musical and artistic
works, films, performance of performing artists, phonograms, etc.)
)
To aid in the protection of intellectual property, WIPO promotes the
wider acceptance of existing treaties and their revisions and, where necessary,
encourages the conclusion of new treaties.
Article 2 of the TRIPs Agreement provides that the "intellectual property"
refers to all categories of intellectual property, namely; copyright and
neighboring rights, trademarks, geographical indications, industrial designs,
patents, layout-designs (topographies) of integrated circuits and undisclosed
information.
)
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Intellectual property rights are generic terms of exclusive rights gives to
the results gained by Intellectual activities of human beings and to sign used for
business activities, and they mean intangible rights which own economic
values.
၏
ဓပပာယများရပါသည။
Intellectual property has become a central issue in international trade
relations. Over 3.7 million patents, 11 million registrations trademarks and 1.3
million registrations of industrial design are in force around the world. Each
year, around 1 million books and 5, 000 feature finals are produced and 3
billion copies of CD and tapes are sold.
.
.
7.2.1 Copyright and Neighboring Rights
Copyright relates to artistic creations, such as poems, novels, music,
paintings, cinematographic works, etc. In most European languages other than
English copyright is called author's rights. The expression "copyright" refers to
the main act, which, in respect of literary and artistic creation may be made only
by the author or with his authorization. That act is the making of copies of the
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literary or artistic work. The second expression, "author's rights" refers to the
person who is the creator of the artistic work, its author, thus underlining the
fact, recognized in most law that the author has certain specific rights in his
creation, for example, the right to prevent a distorted reproduction, which can be
exercised only by himself, whereas other rights such as the right to make copies,
can be exercised by other persons, for example, a publisher who has obtained a
license to this effect from the author.
၏
ဓကလပဆောငမဖြစပပး၎ငးက စာဆပနင အနပညာလပငနး တင
ြနတးသ(သမဟတ)၎ငး၏အခငအာဏာရသကဖပလပနငသည။ထလပဆောငမသညစာဆပန
ငအနပညာလပငနး၏မတတ ပားဖခငးက ဖပလပဖခငးဖြစသည။ တစြန ၏
၏ ၏
မတတ ပားခငက
ြနတးသကယတငသာကျငသးရမညကစစရပ၊
"Neighboring rights" is an abbreviated expression. The full expression
would be "rights neighboring on copyright". It is generally understood that there
are three kinds of right, which are covered by the concept of neighboring rights:
the rights of performing artists in their performance the rights of producers of
phonograms in their phonograms; and the rights of broadcasting organizations
in their radio and television broadcasts.
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၏
Copyright protection by about international level began by the middle of
the nineteenth century on the basis of bilateral treaties. A number of such
treaties providing for mutual recognition of rights were concluded but they were
neither comprehensive enough nor of a uniform pattern.
The need for a uniform system led to the formulation and adoption on
1886, of the Berne Convention for the Protection of Literary and Artistic
Works. It is open to all States. Instruments of accession or ratification are
deposited with the Director General of World Intellectual Property Organization
(WIPO). The Berne Convention has been revised several times (Berlin in 1908,
Rome in 1928, Brussels in 1948, Stockholm in 1967 and Paris in 1971).
၆
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WIPO)၏
7.2.2 Trademark
A trademark serves several purposes. Form the viewpoint of the person
who is interested in buying goods, the trademarks serves the purpose of guiding
him in his decision to buy. Such a decision is based on the expected
characteristics or other properties of the goods (size weight, color, fragrance,
taste, durability, degree of efficiency in the operations in which the goods are
used, etc.)
၏
The essential elements of the standards concerning the availability; scope
and use of trademark rights include the following;
၏
- any sign capable of distinguishing the goods or services of one
undertaking from those of other undertakings (thus including is
service marks) shall be eligible for the registration as a trademarks.
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)
- registrability may be conditional upon visual perceptibility and, for
signs which are not inherently distinctive on distinctiveness
acquired through use.
- registrability may be conditional upon use, but use may not be a
condition for filing and an application may not be refused solely on
the ground that intended use has not taken place within three years
of the filing date.
- the nature of the goods or services to which a trademark is to be
applied may not be an obstacle to the registration of the mark.
) ၏
- members shall publish each trademark and afford a reasonable
opportunity for petitions to cancel the registration, and my afford
an opportunity to oppose the registration.
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- the rights conferred by registration shall include the exclusive right
to the prevent third parties from using identical or similar sings for
identical or similar goods or services, where such use would result
in a like hood of confusion, the letter, to be presumed where the
goods or services are identical, subjects to certain allowable
exceptions such as the fair use of descriptive terms.
)
)
)
- certain rights are provided for the owners of well-known
trademarks and service marks.
- the term of initial registration and renewable shall be no less than
seven years renewable indefinitely.
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- if a showing of use required for the maintenance of a registration,
the registration may be cancelled only after an uninterrupted period
of at least three years of non-use, unless valid reasons for non- use
are shown.
)
- certain restrictions on use are not permitted.
- compulsory licensing of trademarks is not permitted.
-
- trademarks may be assigned with or without the transfer of the
business to which the trademark belongs.
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7.3 Protectionof Trademark Rights, Copyright, Patents and Designsin Myanmar
7.3.2 Trademark Rights
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In Myanmar, there is no specific statutory law on trademark right. In the
Supreme Court is laid down in U Saw and four others V.The Union of Myanmar
followed;
၄) ၄ )
၄
Held: That in Myanmar there is no law or statute establishing
Registration of Trademarks and no authorities exist from which an exclusive
right to a particular Trademark could be obtained. The rights to Trademark in
Burma are therefore dependent upon the general principles of Commercial Law.
မတပတငဖခငးေငရာဥပဆေမရပါ၊ရရနငသည
သးဖခားကနအမတတေပကသးဖခားအခငအဆရးဆပးနငသညအာဏာပငများလညးမရပါ။ဖမန
မာနငငတငကနအမတတေပေငရာအခငအဆရးများသညကးသနးဆရာငးဝယဆရးေငရာဥ
ပဆေ၏အဆထဆထ မသဆောတရားများအဆပါတငတညမလျကရပါသည။
In case of TC Mohamed V. A Kunjalam and two others,(1951) B.L.R
(S.C) P.98 the Supreme Court, Chief Justice observed that:
T.C Moharmed V.A.Kunja lam )
-
“ n Myanmar we do not have any Act like the English Trademarks
Registration Act, 1875, the English Trademarks Act, 1905, or the India
Trademarks Act, 1940. So there is no system for registration of trademarks and
t h ere i no t at uto ry titl e t o t rad emark .”
'' )
)
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၄ )
There being no statutory law on trademarks, a trademark as understood in
Myanmar Civil Law is not defined. However, there exits the definition of a
rad emark i n t h e enal Cod e Secti on 478 o f th e Co d e d efi ne a t rademark a “
a mark used for denoting that goods are manufactured of marketed by a
p art i cul ar p er o n ”. A cco rd ing t o thi defi nit io n ev en wo rd can co n tit ut e a
t rad emark . h u , i t h oul d b e n ot ed th at in Myan mar, t h e w ord “ rad emark ”
could be used in very wide sense although there being no Trademarks Act. The
q ue t ion o f “Wh at i a t rademark ? ” h a to b e d ecid ed on t he b a i c o f th e ru li ng
of the highest court of law which again based on the English Common Law.
၄
In order to be a trademark, as defined in Section 478 of the Penal Code, a
mark must be distinctive so as to distinguish the goods of the proprietor of a
t rad emark fro m t ho e o f o th er p er on . “D i ti nctiv e” mean di t ing ui hin g a
p art i cul ar p er on ’ go od fro m o meb od y el e’ no t a q u ali t y at trib ut ed t o th e
particular article. If a mark merely describes the quality or origin of the article,
such a descriptive mark is obviously not capable of distinguishing the goods of
one marker from those of those of others. It has been held in one case that the
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style or the getup of the boxes or packages in which goods are retailed does not
constitute a trademark as defined in section 478 of the Penal Code.
၄
၏
၄ ၏
It does not really matter whether a particular brand or label used by a
particular manufacturer is registered as a trademark in the strict legal sense.
Thus the manufacturer may use a particular color combination only, without any
particular mark and anyone who imitates that particular color combination on
his goods may be prosecuted or sued or both actions may be taken against him.
In Myanmar, many manufactures usually register the entire label attached on the
goods, although within that label they may have a particular device which may
be called a trademark. In such a case, the whole label will be a trademark and
not the particular device in it.
၏
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၏
7.3.1.1Registration
As already stated, there is no Trademarks Registration Act in Myanmar
and therefore registration of a trademark is not necessary, but nonetheless it is
usually done it may have certain practical results. As a matter of facts, Direction
13 of the Registration Act clearly contemplates that trademarks may be
registered under section 18 (I) of the Registration Act. Under that Direction, a
trademark has to be registered by means of a declaration which is a solemn
statements of facts made by the declarant and usually attested by a Notary
Public or Magistrate or some Judicial Officer.
၏ )
၆)
)
)
) ၏
Such a declaration usually states the rights of the declarant to the
trademark and the trademark or label concerned is usually attached to the
declaration. Although the more fact of registration is not conclusive proof of the
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ownership or user and the ability to produce a registered document may be of
some help in a criminal or civil proceeding. The registration as such is usually
followed by an advertisement or announcement in daily newspapers, stating that
any fraudulent imitation or unauthorized use of or infringement of the said
trademark will be dealt with according to law.
၏
)
) )
In the process of registering a trademark, the owner of it shall mention the
following facts as admissions in the document or declaration submitted for
registration that:
)
(a) the said trademark is being used for the type of goods which he
manufactured and distributed for sale;
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)
(b) the said trademark has been created by him out of his own idea;
)
(c) the said trademark is neither an imitation nor a fraudulent copy of a
trademark owned by any other person.
( )
(d) in his knowledge, no person has manufactured and distributed any
goods of the same type using the said trademark.
)
For registration of the document of declaration the charge for the revenue
stamp is merely Kyats 25/- and the fee collected for registration is merely 6
Kyats. Foreign trademarks if certified by a Notary Public may also be registered
under the same conditions and with the same payments.
၆
7.3.1.2 Remedies for infringement
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There is no trademarks registration Act in Myanmar and therefore
registration of a trademark is not necessary however it is usually done in
practice. As a matter of fact direction 13 of the registration Act clearly
contemplates that trademarks may be registered under section 18(I) of
registration Act. Under that direction, a trademark has to be registered by means
of a declaration which is a solemn statement of facts by the Notary Public or a
magistrate of some judicial officer.
)
)
)
)
In the case of John Walker & Sons Ltd vs. U Than Shwe B.L.R, 1968
(cc) P.73, the court held that an action for infringement of the trademark is
maintainable under section 54 of the Specific Relief Act, which clearly
authorizes the courts in Myanmar to grand perpetual injunctions in infringement
suits.
၄
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According to a ruling in 1939 of the late High Court of Yangon, no civil
section was maintainable for infringement of trademark rights, and the only
action maintainable in civil law was an action for passing-off, which is an old
common law remedy, there being no Trademarks Act in Myanmar. This concept
was accepted and followed by the Courts of Myanmar up to 1968. But in 1968
the correctness of this ruling was challenged in a case before the then Chief
Court, and the learned Judge dissented from the view mentioned in the former
case and overruled the former decision and held that an action for infringement
of the trademark in maintainable under section 54 of the Specific Relief Act,
which clearly authorizes the Courts in Myanmar to grant perpetual injunctions
in infringement suits. Thus, since the passing of judgment in that case, a person
whose right to a trademark has been infringed can maintain an action for
infringement of the trademark as well as an action for passing off.
၏
၏
၆ ၆
(ChiefCourt) ၏
၏
၄)
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၏
In an infringement action, the question of fraud or probability of
deception is immaterial and all that the plaintiff has to prove is that he is the true
owner of the trademark and that the defendant is using a get up which is either
the same or similar to his trademark.
)
In a passing-off action the proprietor first has to prove that he has use the
mar and has acquired a reputation in it in the business concerned. He then has to
prove that what the defend an t h a been g oi ng i t o cau e t he d efend an t ’ go od
to be confused with the plaintiffs goods with the result that customers are led to
believe that they are obtaining goods of the plaintiff when in fact they are
obtaining goods of the defendant.
၏ ၏
၏ ၏
Through the rules of procedure and evidence are different, the relief given
by the Courts in suits for passing-off are the same as in suits for trademark
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infringement. The relief obtainable in these actions are injunctions damages and
other ancillary relief amongst which an injunction is the most effective as it a
specific order of the count directing the defendant to refrain from the act of
infringement or passing-off action.
)
၏
In addition to civil litigation a person who has established the right to a
trademark may take action against anyone for the following offenses:
(a) using a false trademark punishable with imprisonment up to
three years or with fine or with both;
( )
(b) counterfeiting a trademark, punishable with imprisonment up to
three years or with fine or with both;
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)
(c) making or possessing any instrument for counterfeiting a
trademark punishable with imprisonment up to three years or
with fine or with both
)
)
(d) selling goods marked with a counterfeit trademark punishable
with imprisonment up to one year or with fine or with both;
)
Besides the above-mentioned provision in the penal code, there exists the
Myanmar Merchandise Act, which supplements relevant provisions in the Penal
Code. The Act power the Court inter alia, to confiscate all goods and things by
means of or in relation to which the offense has been committed.
၏
၏
7.3.3 Copyright
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The existing Myanmar Copyright Act came into force in 24th February
1914. In fact, the Act contains only 13 sections with Copyright Act, 1911 of
United Kingdom of Great Britain and Ireland, attached there to as the First
Schedule. Almost all of the provisions of the Act, with the exception of a few
sections that deal with penalties, are provisions which prescribe how to modify
and apply English Act in Myanmar.
၄ ၄)
)
၏
၏
h e ter m “co p yri g ht” i defin ed a fol low ;
-
Section 1 (1) Subject to the provisions of this Act, copyright shall subsist for the
term hereinafter mentioned in every original literary, dramatic, musical and
artistic work if-
)
(a) in the case of a published work, the work was first published within
the Union of Myanmar and
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)
(b) in the case of an unpublished work, the author was at the date of the
making of the work a citizen of the Union or resident within the Union
of Myanmar;
)
but in no other works, except so far as the protection conferred by this
Act is extended by notification by the President of the Union to foreign
countries.
2. Fo r th e pu rp o e o f t h i Act; “cop yri gh t ” mean t he ol e ri gh t to
produce or reproduce the work or any substantial part thereof in any material
form whatsoever, to perform or in the case of a lecture to deliver, the work or
any substantial part thereof in public; if the work is unpublished, to publish the
work or any substantial part thereof and shall include the sole right-
)
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၏
-
(a) to produce, reproduce, perform, or publish any translation of the
work;
( )
(b) in the case of a dramatic work, to covert it into a novel or other non
dramatic work;
)
(c) in the case of a novel or other non-dramatic work, or of an artistic
work, to covert it into a dramatic work by way of performance in
public or other wise;
)
(d) in the case of a literary dramatic or musical work to make any record,
perforated roll, cinematograph film, or other contrivance by means of
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which the work may be mechanically performed or delivered.;and to
authorize any such acts as aforesaid.
)
3. For the purpose of this Act, publication, in relation to any work, means
the issue of copies of the work to public and does not included the performance
in public of a dramatic or musical work, the delivery in public of a lecture, the
exhibition in public of an artistic work, or the construction of an architectural
work of art, but for the purposes of this provision, the issue of photographs and
engravings of works of sculpture and architectural works of art shall not be
deemed to be publication of such works.
)
၏
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7.3.2.1 Infringement of copyright
2.(1) Copyright in a work shall be deemed to be infringed by any person who,
without the consent of the owner of the copyright, does anything the sole right
to do which is by this Act conferred on the owner of the copyright;
Provided that the following acts shall not constitute an infringement of
copyright: -
)
(i.) Any fair dealing with any work for the purpose of private study, research,
criticism, review, or newspaper summary:
)
(ii.) Where the author of an artistic work is not the owner of the copyright
therein, the use by the author of any mould, cast, sketch, plan, model, or
study made by him for the purpose of the work, provided that he does not
thereby repeat or imitate the main design of that work:
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)
(iii.) The marking or publishing of paintings, drawings, engravings or
photographs of a work of sculpture or artistic craftsmanship, if
permanently situate in a public place or building or the making or
publishing of paintings, drawings, engravings or photographs (which are
not in the nature of architectural drawings or plans) of any architectural
work of art:
)
၏
၏
(iv) The publication in a collection, mainly composed of non-copyright
matter, bona fide intended for the use of school, so described in the title
and in any advertisments issued by the publisher, of short passages from
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published literary works not themselves published for the use of schools
in which copy right subsists: Provided that not more than two of such
passages from works by the same author are published by the same
publisher within five years, and the source from which such passages are
taken is acknowledged:
၄)
)
၄
(v) The publication in a newspaper of a report of a lecture delivered in
public, unless the report is prohibited by conspicuous written or printed
notice affixed before and maintained during the lecture at or about the
main entrance of the building in which the lecture is given, and except
whilst the building is being used for public worship in a position near the
lecture but nothing in this paragraph shall affect the provisions in
paragraph(i) as to newspaper summaries:
)
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(vi) The reading or recitation in public by one person of any reasonable
extract from any published work.
၆)
2(2) Copyright in a work shall also be deemed to be infringed by any person
who-
)
i. sells or lets for hire, or by way of trade exposes or offers for sale or
hire, or
)
ii distributes either for the purposes of trade or to such an extent as to
affect prejudicially the owner of the copyright or
)
iii by way of trade exhibits in public or
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)
iv imports for sale or hire
)
any work which to his knowledge infringes copyright or would infringe
copyright if it has been made within the Union of Myanmar in or into which the
sale or hiring, exposure, offering for sale or hire, distributions, exhibition, or
important took place.
2(3) Copyright in a work shall be deemed to be infringed by any person
who for his private profit permits a theatre or other place of entertainment to be
used for the performance in public of the work without the consent of the owner
of the copyright, unless he was not a ware, and has no reasonable ground for
suspecting, that the performance would be an infringement of copyright.
)
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Infringement of Copyright is doing anything, without the consent of the
owner of copyright, the sole right to do which is by the Act conferred on him.
Selling, offering for sale, hiring, distributing or exhibiting in public for the
purposes of trade, importing for sale or hiring any work shall also constitute an
act of infringement of copyright. It shall also be an infringement of copyright if
a person for his private profit permits a theatre or other place for entertainment
to be used for the performance in public of the work without the consent of the
owner of copyright. But there are also exceptions to the infringement of
copyright such as using any work for private study, research, criticism, review,
publishing an address of a political nature delivered at a public meeting,
publication in a newspaper of a lecture delivered in public unless such a
publication is not prohibited, publishing of printings, drawings, engravings or
photographs of a work or art, permanently situate in any public place, reading or
recitation in public of any reasonable extract from any published work.
၏
၏
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7.3.2.2 Term of Copyright
General
The term for which copyright shall subsist shall, except as otherwise
expressly provided by this Act, be the life of the author and a period of fifty
years after his death. The exception to this provision is that at any time after the
expiration of twenty-five years from the death of the author of a published work
a person may reproduced it for sale if he has given the noticed in writing of his
of the work calculated at the rate of ten percent on the selling price of each
copy.
၏ ၄
)
)
၄ ၏
)
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Works of Joint Authors ၏
Term of copyright differs form one another depending on the kind of
work created. If it is a work of joint authorship, copyright shall subsist during
the life of the author who first dies and for a term of fifty years after his death,
or during the life of the author who dies last, whichever period is the longer.
၏ )
၏
)
Posthumous works
In the case of a literary, dramatic or musical work, or and engraving in
which copyright subsists at the date of the death of the author, but which has not
been published, performed or delivered in public, before that date, copyright,
shall subsist till publication or performance or delivery in public, whichever
may first happen, and for a term of fifty years thereafter.
)
Government publications ၏
Copyright in any work which has been prepared by or under the direction
or control of any government department, belongs to the Government and
subsists for a period of fifty years from the first publication of the work.
39
၏
)
Mechanical Instruments
In the case of records perforated rolls, and other contrivances by means of
which sound may be mechanically reproduced, the term of copyright shall be
fifty years from the making of the original plate from which the contrivance was
directly or indirectly derived.
၄
)
Photographs
The terms of copyright in photographs in fifty years form making of the
original negative from which photograph is directly or indirectly derived.
)
7.3.2.3 Ownership of Copyright
The author of a work, as a general rule is the first owner of the copyright
therein. There are exceptions to this general rule. In the case of engraving,
photograph or portrait, where the plate or other original was ordered by some
other person and was make for valuable consideration then the person by who
such plate or other original work was ordered shall, in the absence of any
agreement to the contrary, be the first owner of the copyright. And also in the
40
case of the author in the employment of some other person under a contract of
service or apprenticeship to make the work in the course of employment by that
person who employs the author shall, in the absence of any agreement to the
contrary be the first owner of the copyright.
၏
၏
7.3.2.4 Civil remedies for infringement of copyright
Section 6(1) Where copyright in any work has been infringed, the owner
of the copyright shall except as otherwise provided by this Act, be entitled to all
such remedies by way of injunction or interdict, damages, accounts and
otherwise as are or may be conferred by law for the infringement of a right.
၆ )
41
6 (2)The costs of all parties in any proceedings in respect of the
infringement of copyright shall be in the absolute discretion of the Court.
၆ )
6(3) In any action for infringement of copyright in any work, the work
shall be pressured to be a work in which copyright subsists and the plaintiff
shall be presumed to be the owner of the copyright unless the defendant puts in
issue the existence of the copyright, or as the case may be the little of the
plaintiff, and where any such question is in issue, them-
၆ )
(a) if a name purporting to be that of the author of the work is printed or
otherwise indicated thereon in the usual manner, the person whose name
is so printed or indicated shall unless the contrary is proved, by presumed
to be the author of the work;
42
)
(b) if no name is so printed or indicated, or if the name so printed or
i nd icat ed i no t th e au tho r’ t ru e n ame o r th e n ame b y w h ich he i
commonly known, and a name purporting to be that of the publisher or
proprietor of the work is printed or otherwise indicated thereon in the
usual manner, the person whose name is so printed or indicated shall,
unless contrary is proved, be presumed to be the owner of the copyright
in the work for the purpose of proceedings in respect of the infringement
of copyright therein.
)
၏
43
Rights of owner against persons possessing or dealing with infringing copies
etc;
၏
Section 7.All infringing copies of any work in which copyright subsists,
or of any substantial part thereof and all paltes used or intended to be used for
the production of such infringing copies shall be deemed to be the property of
the owner of the copyright who according may take proceedings for the
recovery of the possession thereof or in respect of the conversion thereof.
၏
၏
Exemption of innocent infringer from liability to pay damages etc;
၏
Section 8 Where proceedings are taken in respect of the infringement of
the copyright in any work and the defendant in his defence alleges that he was
not aware of the existence of the copyright in the work, the plaintiff shall not
be entitled to any remedy other than an injunction or interdict in respect of the
infringement if the defendant proves that at the date of the infringement he was
not aware, and had not reasonable ground for suspecting that copyright
subsisted in the work.
44
Restriction on remedies in the case of architecture
Section 9 (1)Where the construction of a building or other structure which
infringes or which of completed would infringe the copyright in some other
work has been commenced, the owner of the copyright shall not be entitled to
obtain an injunction or interdict to restrain the construction of such building or
structure of to order its demolition.
)
9(2) Such of the other provisions of this Act as provide that an
infringing copy of a work shall be deem to be the property of the owner of the
copyright or as impose summary penalties shall not apply in any case to which
this section applies.
) ၏
45
Limitation of actions
Section 10. An action in respect of infringement of copyright shall not be
commenced after the expiration of three years next after the infringement.
The existing Myanmar Copyright Act came into force in 1914, recently,
there is a case decided on 4th No vemb er 1 9 99 befo re th e ju ti ce U u n Sh in , “U
H al Wi n & 2 V D aw K yi K yi a) D aw Yi n Wai Lw i n yay)” . U nd er cop yri ght
Act S.2(1) and S. 6 Substantial Damage 50,000 Kyats was paid to the copyright
owner Yin Wai Lwin (Pyay) for the novel rdIif;a0cspfwJh cufopömby the
infringing who is the owner of zkd;0- Video production, U Hla Win.
၄
၄) )
ါ ) ) ၆
)
For infringement of copyright in television and video, there is a specific
l aw en tit l ed “ h e el ev i ion and V id eo Law ” w hi ch p re crib e p enalt ie for
certain offenses. Under section 33 of that Law the offender of such offenses as
copyright, distributing, hiring or exhibiting for commercial purpose a censor –
certified video tape, without the permission of the license holder may be
punished with imprisonment extending up to three years or with fine extending
up to Kyats 100,000 or with both. In these cases, as the penalty is supposed to
46
be effective and deterrent and the trial of offenders is usually expeditious, the
owner of the copyright may not have recourse on civil action. However the fact
that the infringer has punished under the relevant penal law shall not be a bar to
civil litigation.
All of such disputes relating to copyright and neighboring rights are
settled amicably by negotiations or conciliation, sometimes with the
intervention of certain influential persons or bodies such as Writers and
journalists Association, Motion Picture Association, Music Association etc.
However as the Act is still in force, any person whose rights there under are
infringed may seek protection in accordance with the Act.
47
၏
Myanmar is a member of the World Trade Organization (WTO),
Myanmar have the obligation to adopt the related Intellectual Property Law in
consistent with the TRIPS Agreement on (Trade Related Aspects of Intellectual
Property Rights) 1994.
W )
၄) TRIPS
And then, Myanmar is a member of ASEAN Frame-work Agreement on
Intellectual property, the Attorney General Office has been drafting the new
Patent Law and we have to review existing Laws and to ensure compliance with
international and intergovernmental obligation of Myanmar.
7.3.3 Patentsand Designs
Myanmar Patents and Designs Act, 1939 was first introduced to
Myanmar after independence, in 1937, of then Myanmar from India. After the
expiry of that Act then Legislature of Myanmar enacted Myanmar Patents and
Designs Act, 1945 as a substitute for the 1939 Act. However the 1945 Act was
48
never brought into force and it was replaced by the State Law and Order
Restoration Council Law No. 4 of 1993. However, the Myanmar Patents and
Designs (Emergency Provisions) Act, 1946, which came into force retroactively
on July 1, 1941 is still in force with only two sections in it. Section 2 of this
Emergency Provision Act provides th at unt il th e Burma’ at ent an d D e ign
Act, 1945 comes into operation, the Indian Patents and Designs Act, 1911 shall
continue to have effect in Human as if not withstanding the separation of India
and Myanmar. Myanmar had continued to be a part of India, …” Bu t t he nd i an
Patents and Designs Act 1911 might have been unknown to some lawyers of the
letter generation of the independent. Myanmar, and this Act could not be found
in law books for Myanmar presently in use. In these circumstances, it may be
said that there is presently no law or at least any law in operation on patents and
designs.
၄
၄) ၏ ) ၄၆
၄ )
၄ ၏
)
49
7.3.3.1 Patents under the TRIPs Agreement 1994
၄
An invention is an idea which permits the practical solution of a specific
problem in a field of technology. Inventions are characteristically protected by
p atent , al o call ed “p at ent fo r inv en ti on ”. Ev ery co u nt ry w h i ch g iv e l egal
protection to inventions-and there are over 140 such countries-gives such
protection through patents, although there are a few countries in which
protection may also be given by means other than patents.
၄
၄
The essential elements of the standards concerning the availability, scope
and use of patent rights include the following: -
-
- Patents shall be available for products and processes in all fields of
technology, provided they are new, involve an inventive step and
50
are capable of industrial application except that Members may
exclude invention, the prevention within their territory of the
commercial exploitation of which is necessary to protect order
public or morality, including to protect human, animal or plant life
or health or to avoid serious prejudice to the environment, provided
that such exclusion is not made merely because the exploitation is
prohibited by their law and Members may further exclude
diagnostic, therapeutic and surgical methods for the treatment of
humans or animals plants and animals other than micro-organisms
and essentially biological processes; however, Members shall
provide for the protection of plant varieties either by patents or by
an effective sui generissystem by any combination thereof.
-
၄ ၏
)
၄
)
)
51
- Patents shall be available and patents rights enjoyable without
discrimination as to the place of invention, the field of technology
and whether products are imported or locally produced.
-
- Exclusive rights shall include for products. The right to prevent
third parties from making using, offering for sale, selling or
importing the patented product, and for processes, the right to
prevent third, parties from using the process and from using,
offering for sale, selling or importing for those purpose the product
obtained directly by that process subject to certain allowable
exceptions.
-
52
- Patents shall be assignable, transferable and shall be available for
licensing. (Article 28 (2) of TRIPs Agreement, 1994)
-
- Certain conditions are imposed concerning the disclosure of the
invention in a patent application. . (Article 29 of TRIPs Agreement,
1994)
-
- Any use allowed without the authorization of the right-owner
(commonly known as a compulsory license) and such use by the
government is made subject to certain enumerated conditions: such
use in the case of semi-conductor technology is limited to certain
enumerated purposes;
- ၏
)
- Judicial review shall be available for decision to revoke or forfeit a
patent;
-
- The term of protection shall be at least 20 years from the date of
the filing of the application;
53
-
)
- The burden of proof concerning whether a product was made by a
patented process shall in certain cases be placed on the alleged
infringer. (Article 34 of TRIPs Agreement, 1994)
-
54
KEY TERMS
n tell ect ual rop ert y Law -
Cop yri g ht -
n eigh bou ring righ t -
p atent -
reg i t ered de i gn -
t rademark -
t rade li bel -
Merchand i ed Mark Act -
t ech nol og ical in v ent io n -
i nd u t rial d e ig n -
l it erary -
mu i cal -
artistic work -
fi l m -
p erfo rman ce o f p erfor mi n g arti t -
p hon og ram -
p oem -
n ov el -
emed i e -
n fri ng emen t -
N ot ary ublic -
D ramat i c -
p ubl i cati on -
55
Joint Authors -
Wo rl d rad e rg ani at ion W ) -
TRIPs Agreement -
W -
Exercise Question
1. Wh at do yo u un der t an d b y t h e t er m “ n t ell ect ual rop ert y”? Bri efl y
explain.(Chapter 7)
2. What kinds of laws are being existed in relation to Intellectual Property in
Myanmar? Write explanation notes on each kind.(Chapter 7)
3. Define and explain Copyright in Myanmar.(Chapter 7)
4. Define and explain Trademark Rights in Myanmar.(Chapter 7)
5. New Intellectual Property Law in Myanmar should be enacted according to
TRIPs Agreement. Why?(Chapter 7)