On 29 September 2020, the Thai cabinet approved a draft of amendments to the Copyright Act B.E. 2537 (1994) (“Draft Amendment”), which aims to bring Thai copyright law in line with the World Intellectual Property Organization (WIPO) Copyright Treaty. The Draft Amendment also looks to resolve problems in the application of the Copyright Act (No. 2) B.E. 2558 (2015) (“Old Amendment”), which currently requires copyright owners to address infringement through court proceedings.
Online copyright infringement under Section 32/3
Section 32/3 of the Old Amendment provides copyright owners with recourse to tackle online copyright infringement through court involvement.
To have copyrighted content on a computer system removed by service providers (i.e. internet service providers), the copyright owner may file a petition to the competent court requesting an order be made against the service provider to take down the infringing content. If the court grants the order, the copyright owner is required to bring a lawsuit against the infringing party within the period of time prescribed by the court. However, this procedure is potentially time-consuming and expensive, and it is further complicated by the fact that service providers may not have access to servers hosted in foreign countries.
The Draft Amendment proposes to eliminate problems and inefficacies under the current scheme by revoking Section 32/3 and introducing a new procedure for copyright owners to remove infringing content.
Expanded definition for “service providers”
The Draft Amendment revises the definition of “service provider” to include the following four categories:
✓ An intermediary service provider;
✓ A temporary computer data storage service provider;
✓ A computer data storage service provider;
✓ A computer data locating service provider.
Limited liability of service providers
Under the Draft Amendment, service providers must comply with the following conditions in order to be exempt from liability for copyright infringement:
1. An intermediary service provider will not be liable for copyright infringement if they:
✓ Have only transmitted computer data through an automated technical process;
✓ Are not the originator of the transmission and do not select its recipients;
✓ The data is not altered.
2. A temporary computer data storage service provider will not be liable for copyright infringement if they:
✓ Transmit the computer data through their computer system without changing the content of such data;
✓ Do not use technology to obtain information related to the usage/activities of service users;
✓ Have a system for keeping the data up-to-date.
3. A computer data storage service provider will not be liable for copyright infringement if they:
✓ Do not know, or have no reasonable cause to know, that data on their computer system has infringed copyright;
✓ Immediately remove such data from the computer system or restrict access to such data upon notification of copyright infringement.
4. A computer data locating service provider will not be liable for copyright infringement if they:
✓ Do not know, or have no reasonable cause to know, that data on their computer system has infringed copyright;
✓ Immediately remove reference sources or access points to such data from the computer system or restrict access to such data upon notification of copyright infringement.
Furthermore, service providers must have in place, and comply with, a copyright infringement policy that provides for the termination of services to users who are repeat infringers.
“Notice and take down” scheme for removal of infringing data
Service providers must also comply with the new “notice and take down” scheme, as outlined in a draft of the proposed amendments published by the Department of Intellectual Property on 31 January 2018, in order to be exempt from liability.
If a copyright owner has reasonable ground to believe that a copyrighted work has been infringed on a computer system, they may notify the service provider of such infringement and request the service provider to remove or cease to provide access to the relevant data. Upon receipt of the notification, service providers must promptly take down the content as requested and notify the user who has committed the alleged infringement, or otherwise risk exposing themselves to liability.
If the user lodges an objection to the allegation, the service provider must notify the copyright owner. Subsequently, if the copyright owner does not file a lawsuit against the alleged infringer within 15 days, then the service provider is obliged to restore the data to the computer system.
Infringement of “technological protection measures”
The Old Amendment defines “technological protection measures” as technology designed to prevent the unauthorized reproduction or control of copyrighted works. Under Section 53/4 of the Old Amendment, circumvention of these technological protection measures, or services which enable such circumvention, is prohibited. If a person carries out circumvention with the knowledge that it may result in or facilitate copyright infringement, they may be held liable for infringement of technological protection measures and subject to fines and penalties. Section 53/5 of the Old Amendment itemizes seven cases in which circumvention would not be considered infringement.
Under the Draft Amendment, the provision, manufacture, sale, or distribution of services, products, or equipment that are produced for the primary purpose of circumventing technological protection measures will also be punishable as infringement.
Extension of copyright duration for photographic works
Under Section 21 of the Copyright Act B.E. 2537 (1994), photographic works, audiovisual works, cinematographic works, and sound recordings or broadcasts are protected by copyright for 50 years after the date of their creation. If the work is published during this period, then the copyright will last for 50 years after the date of the work’s first publication.
Under the Draft Amendment, the period of copyright protection for photographic works is extended to provide protection throughout the life of the creator and 50 years from their death.