The Latest Draft Amendment to the Copyright Act of Thailand

The draft amendment to the Copyright Act of Thailand B.E. 2537 (1994) (the “Copyright Act”) has been updated through several legislative stages of revisions. In such regard, the Ad hoc Committee on Consideration of Draft Copyright Act, as appointed by the House of Representatives, recently reviewed and made revisions to the Draft Copyright Act (No....) B.E.... (“Draft Amendment”). 

The purpose of the amendment is for: preparation of Thailand’s accession to the WIPO Copyright Treaty (1996); to update provisions regarding the Internet, online protection measures and enforcement thereof; and to revise liabilities and exemptions for service providers to be more efficient and practical under the new digital era.  The key provisions under the latest version of the Draft Amendment are as follows:

Term of Protection for Photographic Work

Under the current Copyright Act, the term of copyright protection for photographic work is 50 years from the date of its creation; however, if the work is published during such period, the copyright subsists for 50 years as from the date of its first publication.

The Draft Amendment extends the term of protection for photographic work to be “the lifetime of the author plus 50 years”. This will make the new Copyright Act of Thailand be in compliance with the WIPO Copyright Treaty.

Definition of Technological Protection Measures and Violation Thereof

Under the latest Draft Amendment, the term “Technological Protection Measures” (TPM) is defined more broadly than under the current Copyright Act. The Draft Amendment defines TPM as: “technology designed to protect the rights of both a copyright owner and a performer; or technology efficiently used to control access to a copyrighted work or recording material of a performance”. The Draft Amendment also clearly sets forth various TPM violations, including: prohibiting the provision services to circumvent TPMs; and imposing liabilities against manufacturers, sellers or distributors of products, equipment or services intended to circumvent TPMs. Additionally, specific exceptions of liability on TPM circumvention will be prescribed under the Draft Amendment.

Definition of Service Providers

Under the Draft Amendment, a ‘Service Provider’ is defined as an intermediary who transmits computer data or provides other communication access to a computer system - which includes a service provider providing system caching, hosting and information on location based service providers (a location-based service is a general term denoting software services which utilise geographic data and information to provide services or information to users) - regardless of whether the services are provided on their own behalf, in the name of another person or for the benefit of another person.

Measures Against Online Infringement and Safe Harbour for Service Providers

This seems to be the most significant issue under the Draft Amendment because the current Section 32/3 of the Copyright Act has been problematic and inefficient in practice ever since its introduction in 2015.

Under the current Section 32/3 of the Copyright Act, in the event that a copyright owner has reasonable grounds to believe that a copyrighted work has been the subject of infringement on a computer system, he or she can file a motion with the competent court to request a court order against the service provider to remove an alleged copyright work from their computer system(s). However, after the injunction is granted, the copyright owner is required to take legal proceedings against the infringer within a period specified in the court order. Therefore, if the infringer cannot be identified, the legal proceedings cannot move forward. In practice, this often occurs in Thailand in most of the cases relevant to online infringement because Thailand does not the legal capacity to issue a John Doe order (a John Doe order is a pre-infringement injunction remedy provided to protect the intellectual property rights of the creator of artistic works, such as movies and songs).

For the reasons mentioned above, the recent Draft Amendment removes the current Section 23/3 and introduces new scheme of measures against online infringement which prescribe new safe harbour provisions that exempt Service Providers from liability for copyright infringement committed by users. For instance, Service Providers must have explicitly announced and implemented a policy to terminate services to repeated infringers. The draft also sets forth exemptions from liability specifically for each type of Service Provider.

Among various exemption conditions, one of the significant provisions is the requirement for Service Providers to implement the ‘notice and take down’ system, which is not available under the current Copyright Act. This amendment is significantly based on the U.S. Digital Millennium Copyright Act (1998). Notice and take down is a process operated by online hosts in response to court orders or allegations that content is illegal. If a copyright owner has reasonable grounds to believe that a copyrighted work has been infringed on a computer system, they may send a notice to the Service Provider to remove an alleged copyright work, reference source or connection or access point to such work from their computer systems, or cease providing access to such computer data. If the notice from a copyright owner meets the requirements, the Service Provider must remove or disable access to the allegedly infringing material without delay; otherwise, the Service Providers might expose themselves to liability.

Please note that the Draft Amendment currently remains under legislative procedures and there might still be further change to the draft provisions. We expect the Draft Amendment to be finalised and come into force by the end of 2021 or early 2022.