Thailand’s Copyright Act B.E. 2537 (1994) was revised for the very first time in 2015, since it came into force twenty years ago, in March 1995. The amendment was made essentially to accommodate developments with the progression of the digital era where there is a high likelihood that technological changes can potentially escalate copyright infringement.
Copyright infringement is becoming more and more common these days with various social media platforms readily available to people. All it takes is a “click” to copy offending materials. As this is so easy to do, laws must be in place to address the problem quickly and effectively eradicate it.
While the new law provides provisions to battle infringing activities arising from the development of technology, it however, explicitly excludes certain activities from being considered to be a copyright infringement.
Thailand became a party to the Marrakesh Treaty on 28 January 2019 and subsequently had binding effects on Thailand on 28 April 2019. As a result of this, the Copyright Act was further amended to reflect the obligations of Thailand as the 49th contracting member of the Marrakesh Treaty, whereby it provides to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled.
The summary of the amendments to the Copyright Act are:
- Reproduction of sounds, images or both of copyrighted movie under this Act, whether in whole or in part being shown in a cinema shall be deemed copyright infringement. Personal-use fair dealing shall not be application to this reproduction (Section 28/1).
- Recognition of first sale doctrine exception where sale of original or copy of copyrighted work legally acquired shall not be deemed a copyright infringement (Section32/1).
- Excluding temporary reproduction in computer system necessarily for use in such computer system or transfer of such copyrighted work (Section 32/2).
- Providing take-down notice measure for online copyright infringement (Section 32/3).
- Allowance of reproduction or adaptation of copyrighted work legally distributed/published and publication thereof by authorized or approved organizations for benefit of disable persons for non-profit purpose (Section 32/4).
- Protection of Rights Management Information, i.e. an information that identifies an author, creative work, performer, performance, copyright owner or term and conditions of use of copyrighted work, as well as any numbers or codes used in replace for such information attached to or appears in connection with the copyrighted work or recording of a performance (Sections 53/1 and53/2).
- Prohibition of circumvention of Technological Protection Measures, i.e. technology designed to prevent reproduction of or control access of copyrighted work or a recording of performance, whereby such technology is effectively employed for such copyrighted work or recording of a performance (Section 53/4);
- Broadening the scope of civil remedies allowing the court to double the amount of damages when there is clear evidence that copyright infringement was committed with intention to have such copyrighted work or performer’s right widely being accessible by the public (Section 64).
The takedown notice introduced under the new Act is an important measure that allows a party to take action to combat illegal use of the IP rights of a copyright holder when an infringement act occurs online. The Act gives the copyright owner a way to protect their copyright material from being infringed online but at the same time providing a safe harbour to internet service providers; by giving them protection/exemption from liability for breach of copyright. When confronted with a situation where the copyright owner has reliable evidence showing that there is a copyright infringement in an online platform of an internet service provider, the Act, allows the copyright owner to submit a petition requesting the court to order the service provider to take down the offending contents from the service providers’ platform.
An important aspect to be observed under the Copyright Act is that it provides an exemption for any intermediary entity, which is the internet service provider from the alleged infringement act. The provision provides that where the service provider is not a person controlling, initiating or ordering the alleged infringement in the computer system of the service provider, and where the service provider has proceeded with the court’s order to take down the contents of the infringing materials; the service provider shall not be held liable for the alleged infringement.
In the absence of submission of all the information required under Section 32/3 para 3, the court is likely to reject the petition; this will allow the infringing materials to continue to appear online and continue to irritate the copyright owner. The burden to provide all necessary information to the courts is therefore in the hands of the copyright owner.
Additionally, the Copyright Act confers protection to copyright owners in the areas of a breach of Rights Management Information and Technological Protection Measures of the copyrighted work where the Act prohibits deletion or revision of Rights Management Information and circumvention of Technological Protection Measures.
In terms of protection, the Intellectual Property protection system in Thailand seems to have been effectively improved in these past few years. The National Committee on Intellectual Property Policies which the Prime Minister, General Prayuth Chan-ocha was the chairman formed the Intellectual Property Violation Prevention and Suppression Sub-committee which General Prawit Wongsuwan, Deputy Prime Minister served as the Chairman to accelerate intellectual property violation and suppression.
Under their close supervision and monitoring, as well as issuance of cooperative guidelines between intellectual property law enforcement agencies, including the Royal Thai Police, the Department of Special Investigation, the Customs Department and the Department of Intellectual Property, these agencies work smoothly and effectively in prevention and suppression of intellectual property violations.
As a consequent of this copyright owners presently have several options in fighting against violation of their copyrighted work. These include takedown notice, police raid action, border measure, and court proceeding. Police raid action can be conducted by either the police of the Royal Thai Police or that of the Department of Special Investigation. However, the raid action under the jurisdiction of Department of Special Investigation must be cases that are considered as “special cases” as defined under The Special Case Investigation Act and the Notification of the Board of Special Cases (No. 7) B.E. 2562 (2019), i.e. the infringement cases that is valued or believed to be valued to the amount of over THB 10 Million.
The copyright owners who are willing to stop the counterfeit goods to come across any Thai border crossings, may submit their request to the Department of Intellectual Property. The Customs Official will inform the copyright owner/its representative of shipment with suspicious counterfeit goods the Customs Official found. Upon receipt of this report, the copyright owner shall respond to the Customs Official within 24 hours. To effect the protection at the border, the copyright owner must ensure its readiness to be approached by the Customs Official at any time and to be able to respond to the Customs Official within the time limit.
In addition to the above options, when the dispute has arisen, the copyright owner may request the Department of Intellectual Property to assist with settlement through Intellectual Property Settlement Process whereby a request together with evidence of infringement shall be submitted with Intellectual Property Settlement Unit of Department of Intellectual Property. This process can essentially minimize cost and time to be spent in the court proceeding.
The Thai government has taken various steps to improve intellectual property rights protection with significant success in combatting counterfeits. It is hoped that the introduction of the amendments to the Copyright Act has added further effective measures in combatting the increasing number of copyright infringement, in particular, those on the website. However, as to how effective these measures are and whether they can help upgrading the national intellectual protection toward Thailand 4.0 still remains to be seen.
Note: This article is not to be treated as a legal opinion, but rather only as a guide to development on copyright protection in Thailand.