Improved intellectual property laws could be introduced in Myanmar as early as the start of next year, officials drafting the laws say, adding they will provide a more stable framework for investors well ahead of the World Trade Organisation’s latest deadline of 2021.
The proposed laws covering copyright, design, trademark and patents would replace legislation that dates to the colonial period and fill a legal void, said U Thein Aung, an IP consultant assisting with the drafting.
The legislation is slated to include a number of flexibilities, including provisions to override patent rights in pharmaceutical production through a compulsory licensing process administered by the Ministry of Health.
Work on the intellectual property laws began about 10 years ago, U Thein Aung said, though it has faced significant opposition from certain segments of the population, who say cracking down on counterfeits would cause some domestic prices to increase. “Some say that we need goods with the cheapest prices, good technology at the cheapest prices, so we don’t need to enact the laws,” U Thein Aung said.
However, he said international investors were keen to do business in places with strong intellectual property rights.
“For our country, we need to enact a new IP law because we want to welcome foreign investment.”
Myanmar and other least developed countries recently received an extension from the World Trade Organisation requirements to comply with the international standard agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The deadline was extended to 2021 in June from the previous date of July 1, 2013.
According to Peter Fowler, US regional intellectual property attaché for Southeast Asia, moving forward with the legislation several years before the WTO deadline was a domestic decision made by Myanmar, and therefore this particular timeframe is not something the US does or does not support. He added, however, that the US urged Myanmar to “move forthrightly in enacting IPR legislation which meets the needs of a country in the 21st century” and take the necessary steps to ensure measures are effective.
U Thein Aung said Myanmar’s patent law will include provisions allowing for the compulsory licensing of pharmaceutical products to an entity other than the patent holder if the Ministry of Health deems it important for the country’s sake. The practice is allowed under international treaties but has proven controversial in some cases.
Sivaramjani Thambisetty, lecturer in IP law at the London School of Economics, said that compulsory licensing measures are often perceived as a threat to large pharmaceutical companies largely because research and development costs are extremely high – with estimates ranging between US$800 million and $4 billion per drug – and only a small proportion of products eventually turn a profit.
“There is therefore enormous pressure on the successful drugs to be profitably – even excessively – priced in order to subsidise all the other research avenues that failed, and also to keep this sector a profit-making one,” she said.
Some firms claim they are unlikely to enter countries that rely on compulsory licensing, Ms Thambisetty said, adding the debate was more complex as overall only a small portion of pharmaceutical research activities were directed specifically at the disease burden of poorer countries.
However, she said compulsory licensing was “an important tool” allowing developing countries like Myanmar to respond to public health needs, though the real test lies in how the rules around compulsory licensing are formulated and used.
Paul Cawthorne, Asia access campaign coordinator for Médecins Sans Frontières, said that since Myanmar is pushing forward with amending and rewriting its patent law, it was also being encouraged, with support from the World Health Organization and UN agencies, to ensure that TRIPS flexibilities, including the right to use compulsory licensing, are included as a safeguard.