Myanmar

IN BRIEF In Myanmar, the law enforcement agencies and the courts have the duties and responsibilities to manage and preserve the evidence for criminal cases. Police force is responsibilities for investigating and authority to seize the evidence. After seizing the evidence, police officer shall report to the judge and the judge may pass a judgement to deliver to the person who has a right to hold the evidence in possession or to maintain and preserve the evidence in accordance with section 523 of the Criminal Procedure Code. When the Judge pass a judgement to maintain and preserve the evidence at the police station, the police officer shall abide the articles of Myanmar Polices Force Manuals. When the prosecution is start, the court bailiff has the duties and responsibilities to maintain and preserve the evidence under the Court Manuel. Most of the evidence which have been maintained and preserved are perish and depreciate because of the lack of the space and much of the burdens to maintain and preserve. To reduce burdens, the President Office was issued directive no 4/2020 to maintain and preserve the evidence during investigation and trial for criminal offences. In 28th December 2024, the Managing and Preservation of Evidence Law was enacted. According to the law, the evidence which are from anti-money laundering offences, transitional offences and other offences designated by the notification of Union Government shall be managed and preserved under the authority of Committee of Managing and Preservation the Evidence. The intentions of The Management and Preservation of the Evidence Law are to manage and preserve the perishable and depreciable evidence during the investigations and trials and to systematically manage and preserve the evidence from destruction and loss by natural disasters and human. KEY TAKEAWAYS A. Formation of Committees and Their Duties To implement the Management and Preservation of Evidence Law, committees and office are necessary to form. The Central Committee is responsible to establishing various Evidence Management and Preservation committee at the Divisions, States, Union Territory, Self-Administrated Divisions or States and Districts in accordance with the sections set out in Chapter 4 of the Law. The Central Committee has the authority to set the policy, coordinate with relevant government departments and organizations. Managing land and other immovable property inconformity with the direction of the Union Government that have been forfeited and direct the Divisional, State, or Union Territory Evidence Management and Preservation Committee to auction off the movable property which has been forfeited under relevant law are also duties and responsibilities of Central Committee. As outline in section 8, Divisional, State or Union Territory Evidence Management and Preservation Committees approve to deliver the evidence with a bond and vest the duty to the recipient with the approval of the Central Committee which is submitted by sub-subordinate committee and set a timeframe for difficult to transport evidence. Delivering immovable or movable evidence or animals to the person with a bond or recipient with the approval of the relevant superior committee, auctioning perishable evidence to cover depreciation before prosecution by the order of the court and preserving the money from the auction in the account of the relevant Evidence Management and Preservation Committee and conducting in conformity with the court judgment after trial are the responsibilities of the Self-Administered Division and State or District Evidence Management and Preservation Committee. The Evidence Management and Preservation offices are necessary to from as a fundamental office for committees. The offices have to from at the Self-Administered Divisions and States or Districts and the Ministry of Home Affairs shall negotiate with relevant government departments or organizations. A police officer who is not lower than the inspector rank shall be appointed as in charge to manage and preserve the evidence and that officer has to follow the duties and responsibilities which are set by Self-Administered Division and State or District Evidence Management and Preservation Committee. B. Role and Responsibilities of Law Enforcement Agencies To implement this law, law enforcement agencies play in the critical role. In Chapter (6) of the law, evidence types, attach document lists and the procedures to transfer or submit the evidence to the office and court are prescribe. When the narcotics drugs and controlled substances, other chemical substances, arms or explosive substances are evidence, the law enforcement agencies shall abide the direction of the Central Committee as out lined in section 3(a) of the law. For the perishable and moveable properties evidence that are worth over 10 million MMK, they shall be transferred within 48 hours to the nearest evidence management and preservation office. Immoveable properties that are difficult to transport should be transferred within the timeframe which is set by the relevant committee. In section 14 of the law, following documents such as photos of every single evidence which is taken from all sides or outside and inside of the vehicles or machines or buildings, a preliminary examination and the search form or the list of seized properties and the documents from the examination of experts should attach when transfer to the evidence management and preservation office. This law prescribes a section 15 that relate with the submission methods of the evidence for the law enforcement agencies when prosecuting at the court. The Evidence which are not difficult to preserve or gold, silver, jewels or other precious evidence should be submitted alongside with the case. And the documents of difficult to transport evidence type that showing how the evidence is manage or preserve by the relevant evidence management and preservation committee will be enough to submit. C. Maintaining and preservation the Evidence by Management and Preservation Office Before the prosecution, The Self-Administrated Division and State or District Evidence Management and Preservation Committee shall manage and maintain the evidence in following ways in accordance with the section 16 of the law, as transfer by the law enforcement agencies. Shall maintain the evidence at the relevant police station which is not difficult to maintain and trivial. Shall deposit at the relevant Myanmar Commercial Banks in accordance with the stipulations when the evidence includes business documents related with bank, important documents, gold, silver, jewels and precious things. Shall transfer to the relevant government departments or organizations when the evidence is related to the government. Shall maintain and preserve the evidence at the evidence management and preservation office if the evidence is moveable property.D. Managing the Evidence The court may order the auction of perishable or depreciating evidence before prosecution. Under Chapter 43 of the Criminal Procedure Code, it has the authority to forfeit evidence when the accused is absconding. If a property owner is absent for two years after a warrant is issued, the court may forfeit the property under Section 88(7) of Criminal Procedure Code and decline redelivery under Section 89 of Criminal Procedure Code. The court must notify the relevant committee after passing a judgment to forfeit the evidence during or after the trial. The relevant committee handles perishable and depreciable evidence unless otherwise ordered. Divisional, State, or Union Territory Evidence Management Committees may manage such evidence per legal stipulations. For non-land assets, evidence may be auctioned or transferred to government bodies after the appeal or revision period. Managing land or immovable property by Central Committee require direction from the Union Government. Auction proceeds must be deposited into the relevant Regional, State, or Union Territory fund. The law also covers evidence redelivery to rightful owners or destruction by court order. Recipients must cover preservation costs. If destruction is ordered, the committee must follow legal procedures and obtain superior committee approval. E. Prohibitions and Punishments In chapter 10 and 11 of the Management and Preservation of Evidence Law, the prohibitions and punishment sections detail the penalties for whoever violate or omit to abide by the law or any stipulations prescribe in rules, regulations, by-laws, notifications, orders, directives and procedures which are issued in accordance with Management and Preservation of Evidence Law. Anyone responsible for managing evidence including recipients or those executing bonds shall not tamper, forge or misuse evidence and violators will be punished with imprisonment of three to five years and a fine of fifty million to one hundred million kyats. Any person who has a duty to maintain and preserve the evidence is failure to comply the any stipulations which are prescribed in rules, regulations, by-laws, notifications, orders, directives and procedures issued in accordance with Management and Preservation of Evidence Law will be punished with imprisonment of up to three years or a fine of 10 million to 50 million or both. This law also contains strictly punishment for committing theft or destruction the evidence. If any person commits the theft or destruction the evidence which are maintain by the evidence management and preservation office or committee, that person will be punish with imprisonment of five years to seven years and a fine of fifty million to one hundred million kyats. CONCLUSION The enactment of the Management and Preservation of Evidence Law has significantly reduced the burden on courts to maintain and preserve evidence. This system promotes high transparency to the public, ensures that evidence is not depreciated, and facilitates prompt auctioning. While the law primary focus on anti-money laundering and transitional offenses, its efficiency could be further strengthened if the Union Government issues notifications to extend its applicability to other offenses. CONTACT US ILAW Myanmar Co., Ltd. at [email protected]

IN BRIEF Myanmar’s Copyright Law 2019 was enacted on May 24, 2019 and the Ministry of Commerce issued the Copyright Rules with the Notification No. 70/2023, dated October 23, 2023.The Copyright Law and its associated Rules came into effect on October 31, 2023 as per Notification No. 218/2023, dated October 18, 2023. The Myanmar Copyright Law 1914 has been repealed and replaced by the new Myanmar Copyright Law 2019. Starting from February 9, 2024, the protection of copyright and related rights can be registered   with the Ministry of Commerce, Intellectual Property Department. The Intellectual Property Agency issued a Notification No. 1/2024 on February 13, 2024, which outlines the official fees associated with applying for copyright and related rights registration in Myanmar. No Categories of Services Fees (MMK) Approximately Fees (USD) (1USD is equal to 2100MMK) 1. Application for registration of literary or artistic work (CR-1) 100,000 47.62 Application for registration of movies (cinematography work) 300,000 143 2. Application for registration of related rights object (CR-2) 100,000 47.62 3. Application for amendment or correction of clerical errors and other errors that may be permitted to correct included in the application (CR- 3) 50,000 23.80 4. Application for issuing of certified copy of the registration certificate (CR- 5) 50,000 23.80 5. Application for amendment or correction of clerical errors and other errors recorded in the register (CR- 6) 50,000 23.80 6. Application for record of transferring of economic rights (CR- 7) 100,000 47.62 7. Application for amendment or cancellation on the record of transferring (CR-8) 50,000 23.80 8. Application for cancellation of registration (CR- 9) 100,000 47.62 9. Application for change of the representative (CR- 11) 20,000 9.52 10. Application for time extension (CR- 12) 50,000 23.80 11. Application for appeal (CR-13) 300,000 143 The official fee for applications of CR-1, CR-2, CR-7 and CR-8 is only for literary or artistic works or related rights. The prescribed official fee for filing applications of CR-3, CR-5, CR-6, CR-9, CR-11, CR-12 and CR-13 is charged per application. The Intellectual Property Agency has announced an official fee of 100,000 MMK for filing applications related to literary or artistic works only. The Intellectual Property Department has also announced that multiple types of literary or artistic works such as music, poetry, cartoons, short stories, articles, photographs and applied arts can be included in per application as follows; No. Types of work The number that can be included in per application Official fee (MMK) Official fee (USD) A music Up to 12 music 100,000 47.62 B poem Up to 10 music 100,000 47.62 C single panel cartoons Up to 10 music 100,000 47.62 D Short cartoon Up to 5 music 100,000 47.62 E Short novels Up to 5 music 100,000 47.62 F Articles Up to 5 music 100,000 47.62 G Photo Up to 5 music 100,000 47.62 H Applied art Up to 5 music 100,000 47.62   KEY TAKEAWAYS A. Application of Copyrights and Related rights Authors, copyright owners or related rights owners can file to the Registrar using Form CR-1 for the registration of copyright and Form CR-2 for the registration of related rights. Applications may be prepared in either Myanmar or English language. Applications can be submitted through E-filing, in person at the Intellectual Property Department (IPD), or by Post. Copyright may be applied by the author or the owner of copyright through inheritance, transfer by testament, gift or donation, or transfer of ownership under any existing law. Related rights may be applied for by a performer, producer of phonogram, broadcasting organization, or the owner of related rights through inheritance, transfer by testament, gift or donation, or transfer of ownership under any existing law. B. Protected Copyright Works The following literary or artistic works which are original intellectual creations, shall be protected; Books, pamphlets, poems, novels, articles, computer programmes and other writings; Speeches, lectures, addresses, sermons and other oral works; Dramatic works, dramatico-musical works, pantomimes, choreographic works and other literary or artistic works created for stage production; Dongs and musical works, with or without words; Audiovisual works including cinematographic works; Works of architecture; Works of drawing, sketching, painting, carving, sculpture, engraving, mosaic, wood work, pottery, metal ware, terracotta, jewellery, handicrafts, costumes, textiles and ornamentation of ethnic groups; Lithographic works, weaving works, tapestries and other works of fine art; Photographic works; Works of applied art; Textile designs; Illustrations, maps, plans, sketches and three-dimensional works related to geography, topography, architecture or science; Translations, adaptations, arrangements and other alterations or modification of literary or artistic works; Collections of literary or artistic works, including collections of the traditional cultural expressions; Compilations of data whether in machine readable or other form, provided that such collections must constitute intellectual creation by reason of the selection or arrangement of their content but contents of the collection shall not be concerned with the protection. Literary or artistic works shall be protected by the sole fact of their creation irrespective of their mode or form of expression, their content, quality and purpose. C. Unprotected Copyright Works Idea, procedure, method of operation, mathematical concept, principle, discovery or data News of the day or miscellaneous facts having the character of mere items of press information Constitution and legislation Rules, regulations and by-laws, and notifications, orders, directives and procedures issued by the Governmental departments and Governmental organizations Judicial decisions and orders Official translation and collection of those in sub-sections (3) to (5) by the Government. D. Rights of Copyright Owners and Owners of Related Rights Copyright Owner’s Rights Copyright protects authors by granting them a set of exclusive rights over their works. There rights include economic rights and moral rights, in accordance with Berne Convention. 1.1 Economic rights The right owners can derive financial reward from the use of their works by others. The author or copyright owner shall have the right to exercise economic rights directly or by to authorizing others to do so, as follows; Reproduction; Translation, adaptation, arrangement or other alteration or modification; Distribution of the origin or a copy of the work to the public through sale or other transfer of ownership; Rental of the original or a copy of computer programme, an audiovisual work, a cinematographic work, a literary or artistic work embodied in a phonogram, a database or a musical work in the form of notation to the public; Public performance; Broadcasting; Communication to the public by any other means; Collection of literary or artistic works of his creation; 1.2 Moral rights The author shall retain the exclusive moral right, even if he is not the owner of economic rights. Right to claim authorship and to have his name indicated as the author on the copies of any public use of his literary or artistic work; Right to use a pseudonym if it was originally described on copies of a literary or artistic work lawfully made available to the public; Right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to his literary or artistic work which would be prejudicial to his honor or reputation; Rights of Related Rights Owners 2.1 Economic rights Related rights protect to performances, original recordings and broadcasts of works. Performers, producers of phonograms and broadcasting organization have granted the related rights. 2.1.1 Economic Rights of the Performer I. Broadcasting or communication to the public of his unfixed performance, except where the broadcasting or communication to the public is undertaken by any of the following manners; Fixation of the performance with authorization of the performer or carrying out the acts in section 41 without authorization of the performer Broadcasting of the performance by the organization itself that initially broadcasts the performance or by its authorization II. Fixation of his unfixed performance III. Direct or indirect reproduction of a fixation of his performance, in any manner or form; IV. Distribution to the public of a fixation of his performance, or of its copies except the sale or transfer of ownership of the copy of a fixation of his performance anywhere with authorization of the performer; V. Rental to the public of a fixation of his performance, or its copies; VI. Making available to the public of his fixed performance, by wire or wireless means or any other communication means in such a way that members of the public may access them from a place or at a time individually chosen by them; 2.1.2 Economic rights of the Producer of Phonogram Reproduction of a phonogram by any manner or form, directly or indirectly; Importation of copies of a phonogram; Distribution of original or copies of the phonogram to the public except the original or copy of the phonogram which has been sold or transferred in any country with the permission of the producer; Renting the copies of phonogram to the public with the fee; making available to the public of the phonogram, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them; 2.1.3 Economic rights of the Broadcasting Organization Rebroadcasting of the broadcast; Communication of the broadcast to the public; Fixation of its broadcast Reproduction of a fixation of its broadcast 2.2 Moral Rights and The Performer’s Moral Rights The rights to claim to be performer; The right to object to any alteration, modification or destruction of his performances in any way that would be prejudicial to performer’s reputation;  E. Protection term of the Copyright and Related Rights Copyright 1.1 Terms of economic rights The life of the author and 50 years after the year of its death; If literary or artistic work of joint authorship, the life of the last author and 50 years after the year of its death; 50 years after the year of the work has been made available to the public with the consent of the author, or, failing to do such an event, 50 years after the making of such a work in the case of a cinematographic work or an audiovisual work; 50 years after the year of the work has been lawfully made available to the public in the case of a literary or artistic work published anonymously or under a pseudonym provided that where the author’s identity is revealed before the expiration of the said period, the term shall be the same as in clauses (i) and (ii) of this sub-section’ 50 years after the year of the work has been created, lawfully made available to the public or firstly published by Governmental department and Governmental organization for which it is the first owner of the copyright, whichever year is later in the case of a literary or artistic work of Governmental department or Governmental organization except the matters unprotected under section 16; 25 years from the making of the work in the case of a work of applied art; 1.2 Terms of moral rights The term for moral rights is the life of the author and for unlimited period form his death; Related rights 2.1 Protection terms of economic rights of performer 50 years following the year in which the performance was fixed in any medium, or in the absence of such fixation, 50 years from the date of the end of the year in which the performance took place; 2.2 Protection terms of economic rights of producer of phonogram 50 years following the year of publication of the phonogram or, if the phonogram has not been published, 50 years following the year of the first fixation; 2.3 Protection terms of economic rights of broadcasting Organization 20 years following the year in which the broadcast took place; 2.4 Terms of moral rights Terms of moral rights of the performer The term of protection for the moral rights of the performer shall be during the life of the performer and for an unlimited period after his death; Author: Htar Su May, Senior Associate, ILAW Myanmar Co., Ltd.    

DFDL is pleased to announce the expansion of its Indonesia practice with the addition of a new team at Nusantara DFDL Partnership in Indonesia. Afriyan Rachmad joins as a Partner, bringing with him over 18 years of experience in projects and infrastructure, corporate and commercial, and mergers and acquisitions. He also has expertise in dispute resolution and litigation, including arbitration proceedings, civil cases, employment/industrial relations, competition and anti-trust matters, and criminal cases at various court levels in Indonesia. Joining the team as Foreign Counsel is Jade Hwang, a corporate lawyer with specialization in cross-border M&A, joint ventures, and corporate restructuring. She also has extensive knowledge of capital markets and securities law. Jade has regional experience in Malaysia, Cambodia, and Indonesia, where she is currently based. Additionally, Sri Ningsih has been promoted to Partner. With 13 years of experience, Sri is a corporate and commercial lawyer as well as an employment lawyer. She has been advising foreign clients on establishing local subsidiaries, including joint venture companies and special purpose entities, to facilitate their market entry and business activities in Indonesia. The new team will join the existing team in Indonesia, led by Vinay Ahuja, Partner and Head of the Indonesia Practice. Together with Nusantara DFDL Partnership, DFDL will provide comprehensive and integrated legal services to clients across Indonesia and the region. The new team brings extensive experience and expertise in various sectors and practice areas, such as energy, projects and infrastructure, corporate and commercial, mergers and acquisitions, dispute resolution, banking and finance, technology, and foreign investment.  

On 9th March 2023, the Ministry of Commerce (MOC), Intellectual Property Department held the discussion concerning with enforcement of Trademark Law. Key Takeaways No. Matter Details Remark 1. Enforcement 1st April 2023 The enforcement date shall be second soft opening date and the applications which have re-filed during the first soft opening through WIPO e-filing are will have to pay the fee with E-payment 2. Trademark owner or representative who obtained WIPO account Able to apply their trademark online Responsible for all matters relating to IP registration applications filed with his account, corresponded with IP department through the email; and entitled to file applications only with WIPO file. 3. The trademark owner or representative who has no WIPO file account Must apply their old application on counter only, with TM1 form. A person who is eligible to apply for WIPO file account must be ·      at least 18 years old; ·      a citizen of Myanmar; and ·      must be a holder of an IP representative training certificate issued by the IP department. 4. Grand opening date   May be announced with the notification which will be issued within March 2023. Application forms There are 19 forms regarding the IP applications as mentioned with Order No. 44/2022 on IP official website. Form No. Types of form Remark TM - 1 Application for Registration of a Mark Specified for per class only. TM - 2 Appointment of a Representative (POA) If the applicant’ entity is incorporated outside of the Myanmar or the applicant is not resident in Myanmar, TM-2 form must be notarized from that country; and No fee. TM - 3 Request for Reinstatement of an Application Specified for per application. TM - 4 Request for Correction of an Application Specified for per application. TM - 5 Request for Withdrawal of an Application No fee. TM - 6 Request to Limit the List of Goods or Services in an Application Specified for per application. TM - 7 Request to Divide an application Specified for per application. TM - 8 Opposition to Registration of a Mark Specified for per application. TM - 9 Request to Issue Certified Copies of a Registration Certificate Specified for per application. TM - 10 Request for Amendment of Registration of a Mark Specified for per application. TM - 11 Request for Renewal of Registration of a Mark Specified for per class only. TM - 12 Request for Recordation of Transfer of Registration of a Mark Specified for per mark only. TM - 13 Request for Recordation of a License of a Registered Mark Specified for per mark only. TM - 14 Request to Cancel Recordation of a License of a Registered Mark No fee. TM - 15 Request for Invalidation of a Registered Mark Specified for per application. TM - 16 Request for Cancellation of a Registered Mark Specified for per application. TM - 17 Request to Change the Representative Specified for per application. TM - 18 Request for Time Extension Specified for per application. TM - 19 Application for Appeal Must be addressed to the chairperson of agency for appeal; and specified for per class only. Official fee Official fee must be calculated per class for trademark registration. No. Matter Official Fee 1. When filing a trademark registration 150,000 MMK / per class / per one trademark 2. After the examinations are completed 150,000 MMK / per class / per one trademark Note: The registration of trademark will complete after paying all the fees. IP Department will soon issue an official announcement regarding the official fees. Payment No. Matter Details 1. E-payment system AYA bank; and CB bank 2. Bank Portal Visa; MasterCard; AYA Pay; CB pay; and MPU card 3. Bank transaction fee 300 MMK for per transaction. Note: Payment which be made with MasterCard or Visa, the exchange rate will be charged under the exchange rate policy of relevant bank. Others essential note Currently, the trademark search is not available. There is no official search facility nor database. The ORD keeps its records confidential. However, it will be available soon in the grand opening period. IP officer has informed that they are constantly trying to implement the grand opening. We will certainly keep you apprised of any future developments in its regard. Should you need further information on protecting trademarks in Myanmar both under the current practice and the new Law, please drop us a line at [email protected]