Frequently asked questions about the Myanmar Copyright Law(2019)

11/02/2024 - 0 Comments

1. What is a Copyright?

Copyright means the exclusive rights of an author of a literary or artistic work in accordance with the provisions of this Law. (Section 2 (i) of the Myanmar Copyright Law 2019)

2. What are related rights or neighbouring rights?

Related rights mean the exclusive rights of performers, producers of phonograms and broadcasting organizations contained in Chapter XIV of this Law. (Section 2 (j) of the Myanmar Copyright Law 2019)

3. What is an author?

Author means a natural person who creates any literary or artistic work protected under this Law through his own intellect. (Section 2 (l) of the Myanmar Copyright Law 2019)

4. What is the owner of Copyright?

Owner of Copyright means any of the following persons, his successor or any legal entity:

(i) An author;

(ii) A natural person or legal entity which has the economic rights originally, other than the author;

(iii) A natural person or legal entity to which the ownership of the economic rights has been transferred in accordance with law. (Section 2 (m) of the Myanmar Copyright Law 2019)

5. What is the owner of related rights?

Owner of related rights means any of the following persons, his successor or any legal entity:

(i) A performer, producer of phonogram and broadcasting organization;

(ii) A natural person or legal entity which has the economic rights originally, other than the performer, producer of phonogram and broadcasting organization;

(iii) A natural person or legal entity to which the ownership of the economic rights has been transferred in accordance with law. (Section 2 (n) of the Myanmar Copyright Law 2019)

6. Who is right holder?

Right holder means the author or owner of copyright or related rights. In this expression, assignee, licensee and legal successor of copyright or related rights are also included; (Section 2(o) of the Myanmar Copyright Law 2019)

7. What is a performer and performance?

Performer means a musician, vocalist, actor, dancer or a person who acts, plays in, sings, dances, interprets, narrates or otherwise performs literary or artistic works or expressions of folklore; (Section 2 (p) of the Myanmar Copyright Law 2019)

Performance refers to:

(i) reciting, singing, playing, dancing or acting the works directly or through any medium or any process or rendering the works by any other means, in the case of other literary or artistic works other than an audiovisual work or a cinematographic work;

(ii) showing of images in sequence and making of accompanying sounds audible in the case of an audiovisual work or a cinematographic work; and

(iii) making the recorded sounds audible in the case of a phonogram. (Section 2 (q) of the Myanmar Copyright Law 2019)

8. What is Producer?

Producer means a natural person or legal entity that undertakes making of the audiovisual work or cinematographic work or the first fixation of sounds or the initiative for the first fixation of sounds in a phonogram; (Section 2 (r) of the Myanmar Copyright Law 2019)

9. What is collection of work?

Collection of Work means a collection of literary or artistic works which, by reason of selection and arrangement of their contents, constitutes intellectual creations. (Section 2 (s)of the Myanmar Copyright Law 2019)

10. What is work of joint authorship?

Work of Joint Authorship means a literary or artistic work to the creation of which two or more authors have contributed. (Section 2 (t)of the Myanmar Copyright Law 2019)

11. What is computer programme?

Computer Programme means a set of instructions expressed in words, codes, schemes or any other form, which is capable when incorporated in a medium that the computer can read, of causing the computer to perform or achieve a particular task or result; (Section 2 (cc)of the Myanmar Copyright Law 2019)

12. What is a collective management organization?

Collective Management Organization on Copyright or Related Rights means an association managing copyright and related rights on a non-profit basis, established on the basis of agreement among authors, copyright owners and related rights owners to protect their copyright and related rights in accordance with this Law; (Section 2 (ll) of the

13. What can be protected and What cannot be protected?

The following literary or artistic works which are original intellectual creations shall be protected:

(a) books, pamphlets, poems, novels, articles, computer programmes and other writings;

(b) speeches, lectures, addresses, sermons and other oral works;

(c) dramatic works, dramatico – musical works, pantomimes, choreographic works and other literary or artistic works created for stage production;

(d) songs and musical works, with or without words;

(e) audiovisual works including cinematographic works;

(f) works of architecture;

(g) works of drawing, sketching, painting, carving, sculpture, engraving, mosaic, wood work, pottery, metal ware, terracotta, jewellery, handicrafts, costumes, traditional attires and hair and dressing style of ethnic groups;

(h) lithographic work, weaving work, tapestries and other works of fine art;

(i) photographic works;

(j) works of applied art;

(k) textile designs;

(l)illustrations, maps, plans, sketches and three-dimensional works related to geography, topography, architecture or science.(Section 13 of The Myanmar Copyright Law 2019)

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. (Section 14 of The Myanmar Copyright Law 2019)

The following derivative works shall be protected without prejudice to the copyright of the original literary or artistic works:

(a) translations, adaptations, arrangements and other alterations or modification of literary or artistic works;

(b) collections of literary or artistic works, including collections of the traditional cultural expressions;

(c) 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. (Section 15 of The Myanmar Copyright Law 2019)

Notwithstanding the provisions of sections 13, 14 and 15, if a literary or artistic work or an object of related rights is involved in any of the following, copyright or related rights protection shall not extend to:

(a) idea, procedure, method of operation, mathematical concept, principle, discovery or data;

(b) news of the day or miscellaneous facts having the character of mere items of press information;

(d) rules, regulations and bye-laws, and notifications, orders, directives and procedures issued by the Governmental departments, Governmental organizations and Departments;

(e) judicial decisions and orders;

(f) official translation and collection of those in subsections (c) to (e) by the Government. (Section 16 of The Myanmar Copyright Law 2019)

14. Who shall be the original owner of the economic right of a literary or artistic work?

Without contrary to the provisions in Chapter XII of this Law, the author or owner of copyright shall have the exclusive economic rights to carry out or to authorize any other person to carry out the following:

(a) reproduction;

(b) translation, adaptation, arrangement or other alteration or modification;

Proviso: The right of distribution does not apply to the original or a copy of the work that has already been subject to a sale or transfer of ownership anywhere with the authorization of the author or owner of copyright.

(d) 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; Proviso: Provided that the rights of rental do not apply to rental of computer programs

where the programme itself is not the essential object of the rental;

(e) public performance;

(f) broadcasting;

(g) communication to the public by any other means;

(h) collection of literary or artistic works of his creation. (Section 18 of the Myanmar Copyright Law 2019)

The author who has created a literary or artistic work shall be the original owner of the economic rights. Provided that:

(a) in the case of a literary or artistic work of joint authorship:

(i) the co-authors shall be the original owners of the economic rights.

(ii)the author of each part shall be the original owner of the economic rights in the part that he has created provided that their individual contributions can be used separately and author of each part can be identified;

(b) in the case of an audiovisual work or cinematographic work:

(i) the producer shall be the original owner of the economic rights unless otherwise agreed;

(ii)economic rights of the author who makes an audiovisua work or cinematographic work shall not prejudice to the economic rights of the author who created the literary or artistic works that has been adapted in making such audiovisual work or cinematographic work.

(c) in the case of collection of the works, unless otherwise agreed, a natural person or legal entity which takes the initiative in collection of the works shall be the original owner of the economic rights;

(d) in the case of a photographic work:

(i)the photographer who originally creates the work shall be the original owner of the economic rights;

(ii)the ordering person to take a photograph shall be the original owner of the economic rights when that photograph is taken by a photographer under a written agreement with that ordering person unless the agreement provides to the contrary.

(e) in the case of a literary or artistic work created by an author, employed by a natural person, in the course of his employment, the employer shall be the original owner of the economic rights unless otherwise agreed by the employer and employee;

Explanation: Employer includes the legal managerial agent of the employer, and his heir and the legal successor of share if the employer dies in the case of private business.n (Section 22 of the Myanmar Copyright Law 2019)

15. Does the copyright owner may transfer the economic right?

The author or owner of copyright may transfer the economic rights to any person in accordance with the provisions contained in Chapter XIII of this Law. (Section 19 of the Myanmar Copyright Law 2019)

(a) The owner of copyright may transfer the economic rights in whole or in part to any other person or legal entity

(b) The owner of copyright may transfer economic rights to any other person or legal entity by any of the following means:

(i) inheritance under any existing law or custom;

(ii) transfer by testament;

(iii) gift or donation;

(iv) transfer of ownership under any of the existing law;

(v)licensing.

(c) The owner of related rights may transfer his economic rights to any other personal or legal entity by any means included in subsection (b) with the consent of all concerned persons in those related rights.

(d) The transfer of economic rights by the owner of copyright or of related rights shall be in writing and signed. (Section 34 of the Myanmar Copyright Law 2019)

16. How do I get copyright protection in other countries?

Copyright work acquires automatic right by virtue of creation. Copyright is territorial so there are different copyright laws in different jurisdictions. Most of the countries are parties to international conventions and treaties such as the Berne Convention and The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The treaties have minimum standards and principles for countries to include in their national legislations, such as the “National Treatment Principle” which ensures there is no discrimination as each country is required to treat works from other countries in the same way as they treat the works of their own nationals.

18. What is the duration of related rights?

Under the WIPO Performances and Phonograms Treaty (WPPT) 1996, the term of protection for performers shall last, at least 50 years from the end of the year in which the performance was fixed in a phonogram.

The term of protection for producers of phonograms under Article 17 of WPPT shall last, at least, until the end of a period of 50 years from the end of the year in which the phonogram was published or failing such publication within 50 years from the fixation of the phonogram. An exception is Ghana’s Copyright Act Section 29 Act 690 of 2005 which provides seventy (70) years for the protection of Performers’ rights.

19. Can copyright be transferred to someone else?

Yes. Copyright can be transferred as it is a property of the right holder. The transfer is normally in writing. It can be transferred, wholly or in part, bought or sold, inherited, transferred through the operation of the law and licensed. Some or all the rights may subsequently belong to someone other than the first owner and may be jointly owned by the ones it has been transferred to (transferee).

Most ARIPO Member States Copyright Laws provide for transfer of economic rights in writing. Exceptions exist for moral rights which normally continue to exist with original author even after the transfer of economic rights.

20. Can moral rights be transferred?

It depends on the laws of each jurisdiction but the right to be recognized as an author remains even after the economic rights lapse, an author will still be the author of a work and the author can object to any use of the work that will water down his integrity though he has sold all economic rights of that work. Moral rights must be respected by anyone who has been licensed to exploit the economic rights. The licensee should not use the work in prejudice of the paternity and integrity of the right holder.

In a testamentary disposition, normally in writing, the author can state to whom the moral rights should be given after their death, also by operation of the law. In some jurisdictions, like the United Kingdom and Botswana one can waive the moral rights in writing.

21. What is public domain?

This is where the copyrighted work has enjoyed protection for the 50 or 70 years (depending on the country’s law) after the death of the last surviving author, so it enters the public domain. Works in the public domain may be used freely without permission from the heirs of the former copyright owner or copyright office or Collective Management Organization (CMO).

In arrangements of public domain works where substantial new creative work has been done then it automatically acquires copyright in that specific version by the author.

22. Does copyright allow using works without permission of the right holder?

Most copyright laws provide for exceptions and limitations whereby one is allowed limited use without the permission of the copyright owner. One is not to use a substantial part of the copyrighted work and what is substantial is on a case- by-case basis. One is permitted to use the work exclusively for personal and private use, quotations, commentaries, criticism, scholarly reports, news reporting and illustrations, provided it meets the three-step test as enshrined in the Berne Convention. Most importantly is to acknowledge the source and the name of the author.

23. When should one obtain permission to use copyrighted works?

One needs to get permission from the right holder if the use is a substantial part of the work which has not entered into public domain or a specific new arrangement out of a public domain work. Whenever the use does not meet the three-step test permission is required. 24. Where can one obtain permission to use copyrighted works?

One can get permission from the right(s) holder, but it can be cumbersome to get permission from each right holder of the work that one wants to use a substantial part of it that is why there are Copyright Offices (CO) and Collective Management Organizations who can help you get the owners contacts, or they license you to use the work, they collect royalties and distribute to the right holders.

25. What is licensing?

Licensing is where the copyright owner authorizes others to carry out specified acts in relation to his economic rights. This can be done by him/her, or by a third party, preferably a CMO or any other group that has been assigned to license on their behalf.

What is a non-exclusive licence?

A non-exclusive licence shall entitle the licence to carry out the act concerned concurrently with the copyright owner.

26. What is an exclusive licence?

This is a licence which entitles the licensee to carry out the act concerned to the exclusion of all others including the copyright owner.

27. What is the role of Collective Management Organizations (CMO’s)?

CMOs implement the enabling legislation in their jurisdictions which include facilitating legal access to users through licensing, monitoring where, when and by whom the rights are used, negotiating tariffs on behalf of their right holders collecting and distributing royalties to the right holders and entering into a reciprocal or bilateral agreement with other CMOS.

28. How do I protect my copyright in an electronic environment?

Copyright comes into effect automatically as soon as an original work of authorship is made and fixed in a tangible form. You can include a copyright notice; express copyright statements on the extent of the usage of your work; adopting digital protection measures; retaining supporting evidence for proof of copyright ownership; and in some jurisdictions they have registration, depository and notification systems which will be of help in case of an infringement and there is need to prove ownership. Many forms of digital works may contain certain identifiers embedded in the electronic file.

29. What is copyright infringement?

Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner and not within the requirements of the three-step test. The laws of the countries clearly stipulate what entails copyright infringement and the penalties for such infringement.

By Kyaw Kyaw

(Dominance Literature)

#TheGlobalNewLightOfMyanmar

Myanmar

English

Search

Frequently asked questions about the Myanmar Copyright Law(2019)