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Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention? YES
In general yes, save that photographs are protected for 50 years from authorship or first publication.		 CA s.19, 21
Must a work be fixed in some material form before copyright attaches? NO
 
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? LIMITED
Generally the exercise of copyright is excepted from competition law, except in the situation where a copyright holder licenses the exclusive rights that unfairly restrict competition.		 CA s.15(5), Regulation
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? NO
A Thai citizen has a constitutional right to freedom of expression and speech, which can be limited by law by the Parliament for the following reasons: purpose of maintaining the security of State, protecting the rights, liberties, dignity, reputation, family or privacy rights of other person, maintaining public order or good morals or preventing or halting the deterioration of the mind or health of the public.		 Constitution, Part 7, Section 45
Does the compilation of a database of non-original material fall outside the scope of copyright? NO
 
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? NO
 

Freedoms to access and use

By Home UsersIs time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? YES
However copies may not be sold or let, communicated to the public, or distributed in a manner that may cause damage to the owner of the copyright. It must be used for personal benefit.		 CA S.31(1)-(3), CA s.32(2)
 Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? YES
For personal benefit or the benefit of other family members or close relatives, as long as it does not conflict with the normal exploitation of the copyright work and does not unreasonably prejudice the legitimate right of the copyright owner (including computer programs).		 CA s.32 & 32(2) (CA s.35(2))
 Can works be communicated to a limited public (for example, family and friends) without infringing copyright? YES
For personal benefit or the benefit of other family members or close relatives, as long as it does not conflict with the normal exploitation of the copyright work and does not unreasonably prejudice the legitimate right of the copyright owner.		 CA s.32 & 32(2)
 In any other cases may reproductions be made on a private, noncommercial basis, for example through peer-to-peer file sharing? NO
 
 Are blank media and computer hardware sold free of compulsory levies collected for copyright owners? YES
 
For EducationIs reproduction permitted for the purposes of research or study? YES
As long as it does not conflict with the normal exploitation of the copyright work, does not unreasonably prejudice the legitimate right of the copyright owner (including computer programs), and is not done for profit.		 CA s.32 & 32(1)
 Is it permissible to copy an entire work and to make any number of copies? NO
A work can only be reproduced in part of a work or in abridgement/summary by a teacher or educational institution, as long as it is not for profit.		 CA s.32(7)
 Does any such research and study provision cover distance and online education? YES
The fair use provision for educational purposes is broadly interpreted to cover online and distance learning.		  
 May translations of works be made for educational purposes? LIMITED
Translations can be made for educational purposes only after obtaining a compulsory license from the Director General of the Department of Intellectual Property. These licenses are very difficult to obtain.		 CA s.54
 May works be reproduced and published by educational institutions in connection with systematic instructional activities? LIMITED
A work can only be reproduced in part of a work or in abridgement/summary by a teacher or educational institution, as long as it is not for profit. Use of part work as part of examination questions and answers is also permitted. The Director General cannot grant a compulsory license to reproduce and publish printed works for systematic instructional activities.		 CA s.32(7) & (8), s.54
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? YES
 
 Are temporary or transient copies, incidental to a lawful use, excepted from copyright? NO
But this provision was proposed by the US under FTA negotiations.		  
 Is caching of Web content permitted? NO
 
 Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? NO
But this provision was proposed by the US under FTA negotiations.		  
 Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? NO
But this provision was proposed by the US under FTA negotiations.		  
 Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? NO
But this provision was proposed by the US under FTA negotiations.		  
By content creatorsCan a recording or performance of a musical work be made under compulsory license from the composer? NO
The compulsory licensing provisions under the CA do not cover musical works.		  
 Can copyright works be non-commercially remixed or mashed up into new works? NO
CA s.32-43
 May computer software be reverse engineered for the purpose of creating interoperable software? LIMITED
Only if for research or study of the computer program.		 CA s.35(1)
 Is the incidental inclusion of a work in other material permitted? NO
 
 Is there are copyright exception for parody or satire? LIMITED
Although no express provision exists for parody or satire, this is likely to be covered by the general exception that includes comment and criticism.		 CA s.32(3)
 Is there a copyright exception for professional advice? NO
 
 Do creators who license their work retain the moral right of attribution? YES
CA s.18
 Does copyright law contain provisions regarding traditional knowledge/folklore? NO
 
By the pressIs there a copyright exception for the news of the day? YES
CA s.7(1)
 May copyright material be reproduced for the purposes of review and criticism? YES
As long as an acknowledgement of ownership of copyright is made.		 CA s.32(3)
 May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? LIMITED
This type of speech could be used if to comment or criticize (with acknowledgement of ownership of the copyrighted work); to report the news (again, with acknowledgement of ownership of the copyrighted work); or to reproduce or exhibit it for judicial or administrative proceedings.		 CA s.32(3)-(5)
 May quotations be used for any purpose? LIMITED
The quotation must be “reasonable” and “in part” while also acknowledging ownership of copyright.		 CA s.33
By LibrariesMay libraries copy works that cannot reasonably be obtained commercially? NO
 
 May libraries copy works for users for the purpose of research or study? LIMITED
Only parts of copyrighted work can by copied by libraries for research or study.		 CA s.34(2)
 Is the reproduction of unpublished works by libraries permitted? LIMITED
Only for use in the library or another one, and as long as the reproduction is not for profit.		 CA s.34(1)
 Are libraries allowed to make preservation or archive copies of materials in their collections? LIMITED
As long as reproduction is not for profit.		 CA s.34(1)
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? NO
 
In public affairsAre laws excluded from copyright? NO
 
 Are other governmental works excluded from copyright? NO
 
 Is there a copyright exception for use of material in judicial proceedings? YES
CA s.32(5)

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? NO
Can only rent with the permission of the copyright owner.		 CA s.28(3), 30(3), & 31(1)
May a person in lawfully possession of a copyright work distribute, communicate or make it available without reference to the copyright owner? NO
CA s.29(3)
May works be dedicated to the public domain without legal formality besides an overt act of relinquishment? YES
 
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? NO
 
Is parallel importation permitted? NO
CA s.15
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? NO
 
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? NO
 

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? 800,000 baht or imprisonment up to 4 years, or both CA s.69 & s.70
What is the maximum penalty for copyright infringement for a corporation? No distinction made between copyright infringement by an individual versus a corporation.  
Is registration of copyright required before it may be enforced in court? NO
 
Is there a distinction between personal versus (large-scale) commercial use? YES
Commercial use infringement carries a heavier penalty.		 CA s.69 & s.70
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright? NO
But this provision was proposed by the US under FTA negotiations.		  
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright? NO
But this provision was proposed by the US under FTA negotiations.		  
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? NO
But this provision was proposed by the US under FTA negotiations		  
Are the operations of copyright collectives subject to public oversight? NO
 
Is any portion of the revenues of copyright collectives set aside for benevolent purposes? NO
 
Are copyright collectives precluded from using their revenues for political lobbying? NO
 
Is copyright enforced only through mechanisms provided by law, rather than through private intermediaries? YES
But CA allows settlements between the parties, which can be reached through private intermediaries.		 CA s.66
Is the enforcement of copyright restricted to civil or private law, rather than attracting criminal sanctions? NO
Criminal sanctions can be imposed for copyright infringements where there was commercial purpose.		 CA s.69 & s.70
Are damages for copyright infringement based on the loss sustained, rather than by a preestablished or statutory damages award? LIMITED
The Director General is authorized to prescribe the fine for infringement based on CA s.69 & s.70. The copyright owner will also receive half of the judgement fine paid.		  
Is there provision to penalise the wrongful allegation of copyright infringement? LIMITED
There is a criminal offence provision in the Thai Penal Code, not under the CA.		  

Conclusions

Thailand’s copyright legal regime adequately deals with written and text based copyright issues, but it has not made similar progress when addressing digital and online copyright issues. On the one hand, it is relatively easy to reproduce, use, and distribute written copyrighted works, especially for educational and personal uses. Thailand needs to amend the requirement that allows only for the reproduction of a copyrighted work in part, rather than in its entirety. Nonetheless, regulations and court rulings on these sorts of copyright issues are usually favourable to Thai consumers.

On the other hand, however, Thailand has not addressed the emerging copyright issues around digital, online and telecommunications. A legal void has been created in these copyright issue areas, and as Thailand engages in continued bi/multilateral agreement negotiations, it is increasingly likely that Thailand will resolve these copyright issues through these agreements, having a negative impact on Thai consumers. Since 2004, Thailand has been negotiating with the US over a Free Trade Agreement (FTA). Based on the draft language of the FTA, Thailand would have to enact copyright provisions as part of the agreement. These provisions cover copyright issues dealing with digital and online mediums, in a way mostly likely to protect copyright owners and not Thai consumers.

Thailand has made great strides over the past fifteen years since the enactment of the Copyright Act towards adopting a balanced approach to copyright issues. However, this balance is being interrupted and distorted by new emerging copyright issues dealing with digital and online mediums that Thailand has not adequately dealt with. If Thailand waits to resolve these new issues after signing onto bi/multilateral agreements, that in part impact copyright issues, then copyright owners may win out over consumers in Thailand.

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