The enactment of the Copyright Act No. 5 B.E. 2565 (the “Act”) is a necessary step to enhance the protection of copyrighted work in Thailand, in accordance with the technological changes, and to comply with the World Intellectual Property Organization’s Copyright Treaty, which Thailand will become a signatory of. The sanctioning of the Act complies with the conditions pursuant to Section 26 of the Constitution of the Kingdom of Thailand which states that: “The enactment of a law that results in restricting the rights or liberties of an individual shall be in accordance with the conditions provided by the Constitution. In case where the Constitution does not provide any conditions, such law shall not be contrary to the rule of law, shall not unreasonably impose burden on or restrict the rights or liberties of an individual, shall not affect the human dignity of an individual, and shall specify the rationale and necessity of the restriction of rights and liberties. The law under paragraph one shall be for general application and shall not be intended to be applied to any case or person in particular”.
On February 25, the Deputy Prime Minister and Minister of Commerce, Mr. Jurin Laksanawisit, advocated a new copyright law, which will officially become effective on August 23, 2022.
The essence of the Copyright Act No. 5 includes the following:
✓ Definitions of “Service Provider” and “Service User” are added in Section 3 of the Copyright Act B.E. 2565 (No. 5) from the Copyright Act B.E. 2561 (No. 4) as follows:
■ “Service Provider” is defined as the intermediary for transmitting computer information or otherwise enabling its users to communicate with each other through a computer system, and includes temporary computer storage service provider Moreover, the Service Provider consists of people who collect computer information, computer data providers, and search providers who find the location of a computer information—that is, where computer data is located—regardless of whether they provide services for themselves or on behalf of and for the benefit of others.
■ “Service User” is defined as the User of the Service Provider, regardless of whether they are subject to the Service Charge or not.
✓ The definition of “Technological Measures” in Section 4 of the Copyright Act B.E. 2537, which was amended by the Copyright Act (No. 4), B.E. 2561 (2018), is repealed. The aforementioned article stipulates that “Technological Measures” is defined as technology designed to prevent reproduction of or to control access to a copyrighted work or a recording of a performance, in which such technology is implemented to effectively safeguard such copyrighted work or recording of a performance against unauthorized reproduction or access. Instead, Copyright Act (No.5) uses the following definition:
■ “Technological Measures” is defined as technology that effectively protects the rights of the copyright owners or the rights of the performers pursuant to this Act, or technology used to effectively control access to copyrighted works or records.
✓ In Section 5 of the Gazette, the definition of “Circumvention of Technological Measures” pursuant to Section 4 of the Copyright Act B.E. 2537, which was amended by the Copyright Act (No. 4), B.E. 2561 (2018), is repealed. “Circumvention of Technological Measures” is defined as any act rendering technological measures ineffective.
✓ In Section 6 of the Gazette, Section 21 of the Copyright Act B.E. 2561 (No. 4) is amended from “Section 21. Copyright of a photographic work, an audiovisual work, a cinematographic work, a sound recording or a broadcast shall expire fifty years from the creation of such work but if the work has been published during such period, copyright shall last for fifty years since the first publication of the work” to the following stipulation: “Section 21. Copyright of an audiovisual work, a cinematographic work, a sound recording, or a broadcast shall expire fifty years from the creation of such work but if the work has been published during such period, copyright shall last for fifty years since the first publication of the work.”
✓ In Section 7 of the Gazette, Section 32/3 of the Copyright Act B.E. 2537, which was amended by the Copyright Act (No. 2), B.E. 2558 (2015), is repealed.
✓ In Section 8 of the Gazette, the following sections are added to Part 7, Exceptions to Service Provider’s Liability: Section 43/1, Section 43/2, Section 43/3, Section 43/4, Section 43/5, Section 43/7, and Section 43/8 of Chapter 1 Copyright of the Copyright Act, B.E. 2537 (1994).
■ For example, pursuant to Section 43/1, for Service Providers to be exempt from liability for copyright infringement due to their services, the Service Providers must have declared termination of the service to the service users who have expressly and repeatedly committed copyright infringement and should have already complied with that measure.
■ Pursuant to Section 43/6, in the event that the Copyright Owner has reasonable evidence to believe that his/her copyright has been infringed upon in the system or the computer network of the Service Provider under Section 43/4 or Section 43/5, the Copyright Owner may notify the Service Provider to leave the provided computer information or reference sources claimed to be infringing on the copyright, the connection point of such computer information, or the service provider’s computer network as is. Otherwise, the Copyright Owner may notify the Service Provider to suspend access to that computer information, its references, or the access points of such computer information.
In the event of a copyright infringement notification, the Service Provider may either (i) leave the computer information, reference, or access points of the computer information which was allegedly created by infringing on a copyright in the system or on the Service Provider’s computer network, or (ii) suspend all access to that computer information, its references, or the access points of such computer information, and inform the Service Users who allegedly committed copyright infringement, so that they be given the opportunity to dispute against that accusation.
These amendments are intended to protect Internet Service Providers (platforms such as Facebook, YouTube, etc.) by ensuring that the pirated work they contain can be removed from their systems immediately upon receipt of a notification from the Copyright Owner. This allows timely suspension of copyright infringements on online media and prevents an otherwise exceedingly lengthy process. The law also extends the copyright protection for photographs, which now lasts for the life of the author plus an additional 50 years. This addition also aims at supporting Thailand’s entry into the Copyright Treaty of the World Intellectual Property Organization.
Differences Between Copyright Act N. 4 and N. 5
| Copyright Act, B.E. 2561 (No. 4) | Copyright Act, B.E. 2565 (No. 5) |
| There is no definition of “Service Provider” and “Service User.” | There are added definitions of “Service Provider” and “Service User.” |
| Section 4. “Technological measures” is defined as technology designed to prevent reproduction of or to control access to a copyrighted work or a recording of a performance, in which such technology is implemented to effectively safeguard the copyrighted work or recording of a performance against unauthorized reproduction or access. | Section 4. “Technological measures” means technology that effectively protects the rights of the copyright owners or the rights of the performers pursuant to this Act, or technology used to effectively control access to copyrighted works or records. |
| Section 4. “Circumvention of Technological Measures” is defined as any act rendering technological measures ineffective. | The definition of “Circumvention of Technological Measures” is revoked. |
| Section 21. Copyright of a photographic work, an audiovisual work, a cinematographic work, a sound recording, or a broadcast shall expire fifty years from the creation of such work but if the work has been published during such period, the copyright shall last for fifty years from the first publication of the work. | Section 21. Copyright of an audiovisual work, a cinematographic work, a sound recording, or a broadcast shall expire fifty years from the creation of such work but if the work has been published during such period, the copyright shall last for fifty years from the first publication of the work. |
| Section 32/3 exists. | Section 32/3 of the Copyright Act B.E. 2534, which was amended by the Copyright Act (No. 2), B.E. 2558 (2015), is repealed. |
| There is no Section 7. | The following is added to Part 7, Exceptions to Service Provider’s liability: Section 43/1, Section 43/2, Section 43/3, Section 43/5, Section 43/6, Section 43/7, and Section 43/8 of Section 1 Copyright of the Copyright Act B.E. 2534 (1994). |