Department of Intellectual Property Sought Public Opinion on Amendment to the Copyright Act of Thailand

The Copyright Act of Thailand B.E. 2537 (1994) (“Copyright Act”) has been updated, and came into effect on 23 August 2022. However, the Department of Intellectual Property recently sought public opinion on the amendment to the Copyright Act, between 18 January and 18 February 2024.

The purposes of seeking public opinion are: facilitating careful review of every dimension of the amendment to the Copyright Act, providing opportunities for all stakeholders and the general public to participate in the amendment to the Copyright law proposed by the Department of Intellectual Property, and ensuring the amendment to the Copyright Law is consistent with the Constitution of the Kingdom of Thailand, B.E. 2560 (2017) Section 77 and the Act on Legislative Drafting and Evaluation of Law B.E. 2562 (2019), as a result of to listening to the opinions of those involved.

The causes of and need for the amendment to the Copyright Act are as follows:

1. The Amendment to the Copyright Act is being enacted in preparation for Thailand becoming a party to the WIPO Performances and Phonograms Treaty (WPPT), in particular by amending and updating the provisions regarding performers’ rights and ensuring the law is consistent with changing economic and social circumstances. Thailand has an obligation to join the WPPT, as part of the Regional Comprehensive Economic Partnership (RCEP). The RCEP is a trade agreement and a large commercial contract that covers approximately 30 percent of the global GDP, there are 10 ASEAN members, 5 of whom are important trading partners of Thailand. Therefore, joining RCEP will be highly beneficial to the economy and trade of Thailand. In addition, amending the Copyright Act to align with the WPPT will enhance protections for Thai performers, to help them benefit from their acting abilities. It also will promote business and investment in performances and sound recordings, to help the Thai entertainment industry compete in the international market.
2. During a review of the Copyright Act (No. 5) B.E. 2565 (2022), the Office of the Council of State and the Special Committee on the draft Copyright Act gave opinions and made observations to Ministry of Commerce. They suggested amending the minimum penalty rates in other Sections of the Copyright Act, for consistency. This amendment will eliminate extortion in return for compromises by those who commit crimes with no intention of infringing copyrights in the first place. This empowers the Court to establish penalties based on the facts and severity of each individual case.

The key principles and important points in the Draft Amendment to the Copyright Act are outlined below:

1. Amending the definition of the terms “sound recordings,” “performers,” “communication to the public,” and “publication,” in accordance with the WPPT and current economic, social, and technological circumstances.
   - “Sound recordings” will be amended to cover sound recordings that are not recorded on physical materials.
   - “Performers” will be amended to cover “transmitting a message” and “expressing local arts and culture.”
   - “Communication to the public” will be amended to cover performances by performers that may be accessed by the general public from locations and at times of individual choice.
   - “Publication” will be amended to cover presenting work to the public by any means, including via the internet.
2. Amending the acquisition of international copyright protection to be consistent with the WPPT. - If a performance is part of a sound recording or sound and video broadcasting work that is protected under Copyright law, the performers’ performance will be protected also.
   - The announcement of the list of member countries will be deleted. When Thailand accedes to international agreements, other countries that are parties to the relevant international agreement(s) automatically will receive protection under the Copyright Act of Thailand.
3. Amending recognition of the moral rights of authors and performers. - Authors and performers have all 3 types of moral rights: Right to be Identified, Right to Object to Derogatory Treatment, and Right to Object to False Attribution.
4. Recognizing and including the upload of copyrighted works to the internet as “publication,” with the copyright term of the relevant copyrighted work commencing on the date on which the copyrighted work is uploaded.
5. Broadening the exclusive rights of performers.
   - Performers have exclusive rights in a recorded performance.
   - Performers may grant others permission to exercise exclusive rights in their performances, with or without limitations.
6. Improving the provisions regarding fair compensation for performers for the use of sound recordings in sound and video broadcasting work or communication to the public, and facilitating entrepreneurs, performers, and music users. - Performers are entitled to receive fair compensation from the copyright owner of sound recordings for the use of sound recordings uploaded via the Internet, regardless of whether or not the recordings are uploaded for commercial purposes.
   - The Director General shall have the power to announce the criteria and procedures for determining fair compensation.
7. Improving the powers and duties of the Copyright Committee. - The Committee has the authority to announce the criteria and procedures for examination of appeals against the Director General’s instruction/decision.
8. Adding provisions relating to the destruction of exhibits in civil cases. - This provision provides more options to a Plaintiff who does not wish to file criminal charges. It also provides an opportunity for a Defendant who agrees to remove infringing products and items that violate performers’ rights from trade channels without being convicted of a crime. These changes will bring the law more in line with RCEP obligations.
9. Abolishing the minimum penalty rates for infringement of copyright or performers’ rights. - The Court has discretion to punish offenders at an appropriate penalty rate.

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