Thailand

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period 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
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? In part
Generally the exercise of copyright is exempted from competition law, except in the situation where a copyright holder licenses the exclusive rights that unfairly restrict competition.
CA s.15(5), Regulation
Has a court or tribunal ever limited the exercise of IP rights pursuant to 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
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
Are rights holders prohibited from excluding user rights under copyright law? No
Is computer software excluded from the scope of patentable subject matter? No

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? In part
An act that does not conflict with a normal exploitation of the copyrighted work and does not unreasonably prejudice the legitimate right of the copyright owner, is not deemed to be infringement of copyright. However, this balancing test is narrowly defined and has been narrowly interpreted by the Thai courts.
CA s.32
Is 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 owne
CA s.32 & 32(2)
For EducationMay students copy works for private 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)
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? In part
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 educators copy works for use in the classroom? In part
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 systemic instructional activities.
CA s.32(7)-(8), s.54
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? No
But this provision was proposed by the US under FTA negotiations.
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? No
But this provision was proposed by the US under FTA negotiations.
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? No
But this provision was proposed by the US under FTA negotiations.
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
CA s.32-43
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? In part
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? In part
There are limited exceptions enumerated in the CA where incidental inclusion of work in other material is allowed and not considered infringement.
CA s. 32-43
Is there are copyright exception for parody or satire? In part
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)
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 quotations be used for any purpose? In part
The quotation must be “reasonable” and “in part” while also acknowledging ownership of copyright.
CA s.33
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? No
May librarians copy works for users for the purpose of research or study? In part
Only parts of copyrighted work can by copied by libraries for research or study.
CA s.34(2)
Are libraries allowed to make preservation or archive copies of materials in their collections? In part
As long as reproduction is not for profit.
CA s.34(1)
Can lending libraries operate without incurring public lending rights fees to copyright owners?
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 either excluded from copyright, or routinely shared under permissive licences? No
Are the results of publicly funded research required to be published under an open access licence? No

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? In part
Under the CA, it seems the copyright owner can assign the copyright to the public domain. There is no discussion of procedures for relinquishing copyright ownership.
CA s.17
Can public domain works be used without the need for any payment or registration of the use? Yes
Again, the copyright owner must first assign the copyright to the public domain. Moreover, the use of works in the public domain must not unfairly restrict competition. There is no discussion of procedures for use of copyrighted worked assigned to the public domain.
CA s.17
Does the law make special provision for the legal use of orphaned works? No
Is parallel importation of copyright works permitted? No
CA s.15
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? No
Are there national programmes or policies that specify or promote the use of open document formats? 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 innocent infringement of IP treated differently by the law? In part
Commercial use infringement carries a heavier penalty over personal infringement. The concept of innocent infringement may become stricter in the near future as the US FTA seeks harsher enforcement of and punishment for innocent infringers. The US FTA also calls for greater legal action and punishment against any third parties whom may have facilitated the infringement.
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 legal purposes? No
But this provision was proposed by the US under FTA negotiations.
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? No
But this provision was proposed by the US under FTA negotiations.
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? No
But this provision was proposed by the US under FTA negotiations.
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? No
Currently, most penalties for infringement focus on fines and imprisonment rather than injunctive relief. Again, with US FTA provisions being negotiated, injunctive relief may become a penalty option incorporated in Thai copyright law.
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? No
But this may change with amendments to the CA under efforts to implement the IP Strategy.
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
CA chapter 8
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? In part
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? No
But there is a criminal offence provision in the Thai Penal Code, not under the CA.
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
Does the patent system allow for pre-grant opposition? No
Pre-grant oppositions are allowed under other forms of IP law (e.g. patents), but not in the copyright context.

Recent or upcoming changes

With the signing of the Anti-Counterfeiting Trade Agreement (ACTA), no one knows what impact this will have on access to knowledge issues, including copyright and patent issues, among many others.  Moreover, the Obama Administration is pushing for other Asian nations to join the Trans-Pacific Partnership (TPP), which is currently being negotiated. The leaked drafts of the TPP includes an IP section, again covering issues from patents to copyright. Right now, Thailand is not a signatory to ACTA and is not part of the TPP negotiations.  However, the Thai government may face pressure from developing countries to join one or both agreements in the near future.  Depending on the final language, the TPP (in combination with the ACTA provisions) could have hugely negative and restrictive impacts on access to knowledge if Thailand were to acede to either of these treaties.

 

 

Summary of position

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 is now only starting to address the emerging copyright issues around digital, online and telecommunications. A legal void has been created in these copyright issue areas, which may be filled by current muliterateral agreements (e.g. ACTA and TPP).  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. Thailand may cave to international pressure from developing countries to resolve copyright and other IP issues in a way where copyright/IP owners win out over consumers in Thailand. 

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