I begin with some trivia in music history: the ubiquitous acoustic piano, with the laid out black and white keys as such, was invented more than 300 years ago, although it was not until about 140 years after its invention that player pianos or pianolas came to exist. Pianolas are pianos which “miraculously” play music by themselves without an operator. This was “magically” done with the use of perforated rolls of paper – these rolls are placed in a receptacle in the pianola, and each perforation or hole in the roll would correspond to a specific note or key. As the roll is “read”, keys are struck successively, and you have instant music. This actually makes each paper roll technically an analog storage of musical data – one of the earliest examples of having “stored” a musical performance for delayed playback. This is my great grandfather’s iPod, basically— only it’s rolled-up paper.
Of course, if you’re reading this on an iPad which packs computing power that far exceeds the technology that brought man to the moon (the computers in Apollo 11 could not even take selfies), the pianolas may have well been invented during the age of the dinosaurs. Grand as they were, the pianolas along with the musical perforated rolls of paper is part of ancient history – dusty, alive and living now only in collectors’ dens, museums, encyclopedic entries and rather curiously, in the Burma Copyright Act of 1914, which is still the law governing copyrights in Myanmar today, more than 100 years after its passage. How so? The Burma Copyright Act of 1914, rather uniquely (in this day and age) provides that copyright shall subsist in records and perforated rolls and other similar contrivances by means of which sounds may be mechanically reproduced. There it is, a sterling reflection of the technology of its time.
Note that the legal logic behind the definition (pun coming up) is rather sound. Copyright protection under this 100-year-old law covers, among others, all contrivances which can produce sound – this covers perforated rolls to iPods. So the Burma Copyright Act, dated as it is, is not incorrect. It isn’t wrong, not even by today’s concept of copyrights. So, does it need updating?
Well, yes. Regrettably the law’s age betrays its usefulness in the Facebook age of today, where legal concepts that typically apply to “traditional” media – concepts such as “publication”, “performance”, and “copying” – are consistently stretched, blurred and eventually transformed.
You do not, for example, “copy” a clip from Youtube – you stream it from the Internet, and you can do this as many times as you want. The immediate issue here is where in the planet this “Internet” can be found and therefore which law will apply (this is another article for another day). The next issue is that, if one consults Ye olde copyright concepts and their nonexistent understanding of the Internet, these will suggest that Youtube videos, every time they are played, are being “re-published” and “re-performed” – but how can this happen when the source of the performance is not even in this country? Answer: “You stream it. From the cloud”. And this is the part where the 1914 law gets inevitably bewildered, irresponsive, and therefore ultimately ineffective.
The Internet, in fact perhaps even television broadcasting, was evidently beyond the wildest contemplations of the drafters of the Copyright Act way back in the turn of the 20th century; and quite simply an upgrade is long overdue.
We know, of course, that a new copyright law for Myanmar is under consideration (together with a whole slew of other IP laws, including trademarks), and when this new copyright law is eventually passed, I suspect that the headlines will read “New Law Makes Downloading Illegal” or something similarly attention grabbing and “click bait-y” to most. I argue, however, that the changes to be brought by the new copyright law will be more institutional and far-reaching than merely the typical slap-in-the-wrist for illegally downloading the latest episode of Game of Thrones. The effects are far greater than that.
For one, computer software will in all likelihood be covered as a creative work under this new law; therefore, software will, by express definition of this new law, be protected by copyright. Understand that right now, this legal distinction is not absolutely clear. This coverage will make software developers, including giants like Microsoft for example, more familiar with the local IP legal landscape, making it more viable for them to navigate the Myanmar market and which can, in turn, embolden them to offer their products locally and officially, and offer official support for users. This can result in a reduction in laptop prices in Myanmar, and the use of “licensed” versus “pirated” software, and that can, in the end, guard against cybercrime exploitation. Formal legal protection of software can also support local software development, business outsourcing, and tech startups. Local app makers can be inspired by the prospect of creating disruptive apps and services, knowing that the new law is supportive of software innovation, rather than be confused by it.
The uptake of collective licensing is not a glitzy change, but a critical one. Collective licensing is the bulk licensing of creative content, like music and movies, to a single and central entity. This entity then takes charge of the licensing (or selling, if you will) of the rights to use the content. It may sound boring, but this legal genesis allows local versions of media streaming services, not unlike Spotify and Netflix, exclusively for Myanmar content. In turn, this will propel broadband internet penetration (people will want faster Internet to watch movies in HD), which should eventually bring down ISP service prices, owing to competition in the sector and also because roll-out costs for updated last mile connections (like direct-to-home fiber optic) will be spread more evenly across more customers.
There will be separate protections and rights for performers, broadcasters and producers (among others) and every participant in the creative production process should be covered. With these protections, each participant should ideally get a fair share of the overall pie, and this should invigorate video and movie production, advertising, equipment distribution and in all inject renewed excitement in the entertainment industry. This can also mean more movies and movie houses (perhaps more movie stars), as well as concerts and concert halls. All these require more warm-bodies, and therefore more employment.
Finally, by adopting international standards, the updated copyright law may bring about a degree of familiarity in legal standards that will ultimately result to the inclusion of Myanmar in the global market of media commerce from which it has been left out. Again, this does not mean much on paper, but this could mean that soon the next Hollywood blockbuster can be released here sooner, and enjoyed by much more people (in the new movie houses I was talking about above).
This wave of changes will eventually reach Myanmar, as it already has in most other places around the world, and it is the proper anticipation and appreciation of the possible benefits of enhanced copyright protection that can mean the difference between a harnessed or missed opportunity. Stand unaware, and it can pass you by. But be poised and ready, and the change can be rewarding. Simple steps, like compiling the software licenses of IT assets for example, can also go a long way in preparedness. One thing is for sure, the time to prepare is now.
Pedro Jose Fausto Bernardo
Principal Foreign Consulting Attorney
Kelvin Chia Yangon Ltd
Partner at Kelvin Chia Partnership
pedro.bernardo@kcpartnership.com
Anthony Chadd Concepcion
Foreign Consulting Attorney
Kelvin Chia Yangon Ltd
acrc@kcyangon.com
