On April 25, 2023, Myanmar’s Ministry of Planning and Finance issued a standard operating procedure (SOP) requiring entities and individuals remitting foreign currency equivalent to more than USD 10,000 out of Myanmar to clear their tax payments prior to the remittance. The SOP took effect on May 1, 2023. This is the latest development since Myanmar began imposing restrictions in April 2022 on the remittance of foreign currency out of the country, implemented by the Central Bank of Myanmar and the Foreign Currency Supervisory Committee. The SOP requires the remitters described above to obtain certain documents evidencing payment of all requisite taxes and duties, and to submit them to their licensed authorized dealer (AD) bank as part of the remittance process. The documents required as evidence differ depending on the purpose of the remittance. The SOP details three main categories, as summarized below. Payments for Interest, Royalties, Trademarks, Copyrights, or Services A remitter of foreign currency for payment of interest, royalties, trademarks, copyrights, or services, must first apply to the Internal Revenue Department (IRD) for evidence that all applicable withholding tax has been paid. In addition, if the country to which the payments are being remitted is party to an avoidance of double taxation agreement with Myanmar, evidence of the recipient’s tax residency must also be submitted to the AD bank. Payments for Goods A remitter of foreign currency to pay for goods must submit the necessary IRD forms along with evidence that corporate income tax and other applicable taxes have been paid. Evidence may include a tax clearance certificate for the fiscal year, the company name, the taxpayer name, and the taxpayer identification number (TIN). Salary Payments A person remitting, in foreign currency, salary earned in Myanmar must submit the required form showing that they paid income tax in the applicable fiscal year. New taxpayers

Southeast Asia’s remarkable growth as a destination for foreign investment—including a 42 percent increase in 2021, according to a joint ASEAN-UNCTAD report—has brought with it innovation as well as the desire to protect that innovation. Investors are increasingly seeking to patent the proprietary technology that is a crucial component of so many businesses today, and a burning question for patent applicants is whether artificial intelligence (AI) technology and software are patentable in Southeast Asia. The short answer is that it depends, as the patent laws in Southeast Asia are not uniform. Is it Patentable? While AI tools tend to be newer, the older and more familiar question is whether computer software is patentable, and many jurisdictions do have specific rules on this issue. Pure software, or software characterized only by source code, may not be patentable, but it can be protected under copyright laws. AI-related software may involve complex algorithms, datasets, and training methodologies that can be challenging to disclose in a manner that satisfies the enablement requirement in practice. Algorithms, mathematical methods, and abstract ideas are often considered non-patentable subject matter in many jurisdictions. While software implementing AI may involve innovative algorithms, securing patents for algorithms alone can be challenging in some jurisdictions. Also, the patent laws of Indonesia, Myanmar, Thailand, and Vietnam specifically list computer programs as unpatentable subject matter. However, a possible workaround would be to describe the software as connected to a tangible medium. This method could overcome an unpatentable subject matter rejection during substantive examination. Furthermore, in Indonesia, a computer program can be patentable if its characteristics (i.e., instructions) have a technical effect and function to solve a tangible or intangible problem. The most liberal of Southeast Asia’s patent regimes—Singapore’s—even addresses AI innovations. The country has a special fast-track scheme for examining AI patent applications called Accelerated Initiative for

Cambodia’s Ministry of Health (MOH) has issued a notification reminding advertisers of health products and cosmetics in the country to obtain the required advertising approvals from the MOH. Issued on April 21, 2023, MOH Notification Letter No. 2198 on the Unauthorized Advertising of Modern Medicines, Traditional Medicines, Health Supplements, Medical Devices, and Health Supporting Products confirms that the MOH is aware of unauthorized advertising taking place in Cambodia, and signals its intention to increase enforcement efforts. It is therefore important for advertisers not yet in possession of the necessary approval to obtain the required advertising authorizations before marketing their health products in Cambodia. Advertising Framework for Health Products in Cambodia To legally advertise a health product in Cambodia, it must first be registered with the MOH (except for cosmetics, which only require notification). Only then can advertising approval be sought from the MOH, which will review the content of the proposed advertisement for compliance with Cambodian law. Approval is subject to a time limit, depending on the manner of advertising. All forms of advertising are covered under the MOH’s purview, including online, offline, business-to-consumer (B2C), business-to-business (B2B), promotion to healthcare professionals, and any other form of advertising. Key regulations prescribing general advertising rules are the Law on Consumer Protection, the Law on E-commerce, and the Sub-Decree on the Management of Commercial Advertising of Products and Services. However, product-specific regulations may also apply, depending on the type of product. For example, certain products may be subject to the regulation that sets rules for trading cosmetics in Cambodia, the (amended) Law on the Management of Pharmaceuticals, or others. Usually, product-specific regulations apply first, with the general product advertising rules being applied in addition wherever they do not conflict with the product-specific regulations. A key issue found among both general and product-specific rules is the prohibition on exaggerating

The significance of artificial intelligence (AI) is rapidly increasing worldwide, and Southeast Asia is no exception, as it plays a leading role in the technological development of many industries. AI has already proven its importance for driving business growth in areas such as e-commerce, finance, and healthcare, but its remarkable potential also raises concerns around privacy. As AI systems are designed to collect and process large amounts of data to improve their operation, it is necessary to balance the development of technology with the protection of individuals’ privacy. Current Frameworks in Southeast Asia This concern has been on regional policymakers’ agendas for many years. The ASEAN Framework on Personal Data Protection, which was adopted in 2016, is not legally binding and has no enforcement mechanism, but it serves as a guide for ASEAN member states in developing their own data protection laws and regulations. Domestic data privacy laws are currently in force in five ASEAN member countries—Indonesia, Malaysia, the Philippines, Thailand, and Singapore—while Vietnam’s Personal Data Protection Decree is scheduled to take effect on July 1, 2023. This presents a challenge for ASEAN members, as adopting AI-related technology can further complicate data protection efforts due to the amount of personal data AI systems collect, as well as the complexity of the data used to train the AI algorithm. Some ASEAN members have also made progress in regulating AI. For instance, Singapore released the Model AI Governance Framework in 2019 and launched the AI Governance Testing Framework and Toolkit in 2022—the world’s first such framework. Similarly, Thailand issued the Artificial Intelligence Ethics Guideline in 2019 to help government agencies in the development, promotion, and use of AI, and in 2023 adopted the Thailand Artificial Intelligence Guidelines to help the private sector develop AI-related work. These guidelines primarily focus on principles and ethics in developing

On April 26, 2023, the Vietnamese government issued Decree No. 17/2023/ND-CP detailing some articles and enforcement measures of the 2022 Intellectual Property Law with respect to copyright and related rights (Decree 17). Decree 17 took immediate effect upon issuance, and provides long-awaited, necessary guidance for implementation of the IP Law, which took effect on January 1, 2023. The official regulations set out significantly new requirements on copyright and related rights in comparison to the draft version of the decree circulated in 2022. Some of the most critical provisions include the following: Detailed Definitions of Terms Decree 17 provides detailed definitions of copyrightable subject-matters, including “literary and scientific works, textbooks, curricula, and other written works”; “lectures, speeches, and other talks”; “journalistic works”; “musical works”; “cinematographic works”; and others. Exceptions to Copyright Infringement Section 1 of Chapter III sets out the exceptions to copyright infringement, including, among others: Reasonable reproduction of part of a work using a copying device for scientific research, personal study, or non-commercial purposes. Using a work in official activities of state agencies. Using reasonable extracts/excerpts of a work. Using a work in library activities for non-commercial purposes Reasonable reproduction of part of a performance, audio recording, video recording, or broadcast. Enforcement Against Infringements The entire Chapter VI covers the protection of copyright and related rights to a very detailed extent, including: Presumption of copyright and related rights; Technological measures to protect rights; and The basis for determination of subjects entitled to copyright and related rights protection. The mechanisms to determine infringements and damages are clearly provided, including: Grounds for determining the nature and extent of infringement; Principles for the determination of damages; and The definition and calculation of mental loss, property damage, decline in income and profit, and loss of business opportunities. Decree 17 also adds a separate section on the assessment of copyright and related rights (definitions, procedures, objects, etc.). The clarifications of copyright and related rights

When a company promotes its products or services, it will naturally use laudatory terms or phrases to describe their quality. However, in Vietnam, such use could constitute trademark infringement, as many terms with a descriptive or laudatory nature have been granted registration as trademarks, often without disclaimers. Examples include “Nuoc Mam Me Lam” (“Fish sauce made by mom”) under Reg. No. 392575 for fish sauce, “Drink it, Wear it” under Reg. No. 387444 for clothing retail services, and “Making Cancer History” under Reg. No. 388177 for healthcare services. Imagine a case where a hospital advertises that its cancer treatment services can help “make cancer history.” Would such advertisement be considered trademark infringement of the registered mark “Making Cancer History”? Fair use or infringement? Under the doctrine of descriptive fair use commonly adopted worldwide, a third party, even a direct competitor, may use another party’s descriptive trademark to describe its own products or services, even if such mark has acquired secondary meaning. However, that use can only be in a purely descriptive manner. Descriptive fair use requires that the mark being used actually describes a quality or attribute of the goods or services, rather than indicating the source. The descriptive words must also be used in the normal course of language. In addition, the mark must be used in the text portions of an advertisement and not as a banner or in any other manner that sets it apart from the other words in the sentence or paragraph in which it is used. To be nominative fair use, such use should accurately refer to a trademark owner or to goods or services and cannot be misleading or defamatory, or imply endorsement or sponsorship by a trademark owner. Vietnam does not have any detailed regulation on fair use of descriptive marks. However, the IP Law recognizes

Myanmar’s long-awaited first-to-file trademark registration system came into full effect on April 26, 2023, with the “grand opening” of the country’s Intellectual Property Department (IPD). This followed the issuance of the Trademark Rules and other related notifications at the beginning of April, in conjunction with the Trademark Law coming into force. Full enforcement of this law is a milestone in Myanmar’s long quest to establish a functioning, modern framework for trademarks in particular and for IP in general. The Trademark Law was passed in 2019 as part of suite of laws meant to modernize the country’s treatment of IP rights. Previously, IP rights holders in Myanmar relied on outdated systems based largely on laws from the colonial period under British rule. For example, brand owners could achieve some measure of protection through establishing use in the country and recording their marks with the Office of Registration of Deeds (ORD). However, these protections were limited and did not provide the same level of security and legal recourse as a comprehensive trademark registration system. Without a proper system in place, businesses were vulnerable to infringement and counterfeiting, which could be detrimental to their reputation and bottom line. The new Trademark Law will provide much-needed protection to brand owners and encourage innovation and investment in Myanmar, bringing the country in line with other Southeast Asian nations that have already implemented modern IP laws and systems, such as Thailand and Vietnam. Features of the Trademark Law In addition to the increased protection and streamlined filing procedures, the Trademark Law offers a range of other salient features: Administration: The core government ministry administering the new Trademark Law is the Ministry of Commerce. Four other ministries—the Ministry of Information; the Ministry of Industry; the Ministry of Agriculture, Livestock and Irrigation; and the Ministry of Education—are named as having supervisory roles. Requirement

Attorneys from Tilleke & Gibbins have contributed the Laos and Thailand chapters to the newly released CMS Expert Guide to Cannabis Law and Legislation. The Thailand chapter was provided by Alan Adcock, partner and head of the firm’s regional life sciences team, while Dino Santaniello, head of Tilleke & Gibbins’ office in Laos, produced the Laos chapter. The guide provides an overview of the legal framework regulating cannabis in 33 jurisdictions around the world. It covers topics such as medical, recreational, and industrial use of cannabis, as well as the patentability of cannabis-based products. The guide’s chapters offer high-level information on the legal approach taken in each jurisdiction, as well as guidance for companies and business activities exploring possibilities in relation to cannabis and hemp. The Laos and Thailand chapters—as well as the full guide to cannabis law in 33 jurisdictions—are available on the CMS website.