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Thailand 2011

Submitted by Sasiwan Prinyart on Wed, 04/03/2009 - 09:14

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
Are works that are not fixed in some material form excluded from copyright? No
Has a court or tribunal ever limited the exercise of copyright 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 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
Has a court or tribunal ever limited the exercise of copyright 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
Are databases of non-original material excluded from copyright? 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 copied 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)
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
Are the results of publicly funded research required to be published under an open access license? No

Freedoms to share and transfer

Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? 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 copyright 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 use of TPMs on 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 copyright 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.
Have major ISPs resisted requests from copyright owners to pass on allegations that their users have engaged in copyright infringement? 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

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 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 are now being influenced by free trade negotiations Thailand is in with the US and EU. Moreover, this legal void is being further complicated by the ongoing political instability and uncertainty in Thailand.

Free trade negotiations have been restarted with the Obama Administration, and new negotiations with the EU are supposed to start in the near future. Furthermore, the new IP Strategy put forth by the current Thai Prime Minister still have not been issued, and with new elections called for sometime this year, there is still no certainty about when these regulations will be promulgated. Both the FTA and IP Strategy provisions cover copyright issues dealing with digital and online mediums in a way mostly likely to protect copyright owners and not Thai consumers. Therefore, it is increasingly likely that Thailand will resolve these copyright issues through the FTAs and through stricter IP laws and enforcement in the recently articulated ministerial IP Strategy, having a negative impact on 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. Unfortunately, it seems like Thailand is caving 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. Finally, these negotiations and ministerial and parliamentary actions on copyright issues will be further complicated by Thailand’s ongoing political uncertainty.

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