You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

November 23, 2016

Copyright Act Amendments: Combating Online Infringement – Obstacles and Prospects

Subscribe to Updates
Informed Counsel

Last year’s amendments to the Thai Copyright Act gave copyright owners broader and more advanced tools to tackle copyright infringement in the digital age. Among these amendments, the one which has garnered the most attention is Section 32/3, which provides preliminary injunctive relief for copyright infringement on computer systems. This feature has been of particular interest to IP practitioners and scholars, who have attempted to determine how best to utilize this section in order to enforce against copyright infringement on the Internet.

While Section 32/3 was designed to address the removal of infringing copyright works online, thus far, it has resulted in a number of unsuccessful enforcement actions by content owners. This article discusses the utility of Section 32/3 to date and offers suggestions for possible improvements which could benefit all stakeholders.

Background to Section 32/3

Section 32/3 was intended to simultaneously limit the liability of Internet service providers (ISPs) and provide a procedure for content owners to have infringing content removed from the Internet, similar to the safe harbor and notice-and-takedown procedures being used in some countries. However, while these jurisdictions do not require court intervention for their notice-and-takedown processes, Section 32/3 does.

During the drafting process of Section 32/3, due to concerns about the possible risk of abuse by exploitative copyright owners or other illegitimate actors, the Office of the Council of State inserted the court as an impartial gatekeeper to review all takedown requests for compliance with the requirements of the statute. This step was designed to prevent copyright owners from excessively enforcing their rights against non-infringing content.

Such misuse of notice-and-takedown procedures has occurred in other countries through use of automated notice programs, which scan Internet platforms without human oversight and often request the removal of clearly non- infringing content. At the same time, critics have claimed that involving the court unnecessarily slows down and complicates the process, and makes ISPs less likely to voluntarily take down infringing content, absent a court order.

How Does Online Infringement Occur?

There are three main categories of platforms that infringers use to reproduce and distribute infringing works online, namely online marketplaces, social media sites, and private websites.

Each category of platform presents unique enforcement issues for content owners whose rights are infringed. A private website run by a professional counterfeiting organization is going to react very differently to a request for cooperation compared to a legitimate social media platform. Rights owners require dependable procedures to block or remove infringing content, regardless of the type of platform used by an infringer.

Methods of Removal

When an ISP is in control of content and is willing to cooperate with content owners, infringing content online may be handled through takedown requests. Due to their international presence, many of the largest online platforms, such as eBay and YouTube, have instituted their own internal brand registry and takedown procedures. These policies are found in the platforms’ Terms of Use, and they operate without any involvement by the courts or other government agencies. Such cooperation between platforms and content owners is a good example of a collaborative solution to online infringement accomplished by ISPs and content owners working together.

While this is promising, it does not address how to combat the worst infringers: private websites that conduct their illegal businesses anonymously on hidden servers which may be located anywhere in the world. When infringing content is hosted by an ISP with servers in a foreign jurisdiction, blocking users from accessing the infringing content may be the only available remedy. While not itself immune from criticism, website blocking may be accomplished in a focused manner by only targeting the specific URL where the infringing content is located.

Obstacles to Enforcement Using Section 32/3

Courts have struggled with implementing Section 32/3 because it does not explicitly provide for website blocking. Takedown orders are effective with compliant ISPs under the jurisdiction of the Thai court. However, takedown orders targeting foreign ISPs with servers hosted outside of Thailand are often unenforceable and are likely to be ignored. As such, the Thai courts have been unable to provide remedies to content owners for the vast majority of infringing websites hosted on foreign servers.

Another result of Section 32/3 is that some Thai ISPs now expect to receive a court order before they will voluntarily comply with a takedown request, based on the unfounded fear that they may lose their liability exemption provided by the statute if they do otherwise. This concern has no basis in the text of the Copyright Act, but it continues nevertheless.

In addition, Section 32/3 requires plaintiffs to follow up a request for a preliminary injunction with a lawsuit, but it does not specify the type of action to be taken, whether civil, private, criminal, or by filing a charge with the police. This creates uncertainty for courts and plaintiffs over for how to pursue a claim under Section 32/3. Additionally, after the content has been removed, copyright owners may think that there is no need for a lawsuit, or it may be very difficult to bring one—in a civil action, the damages may be too low to justify a suit against an anonymous defendant, and in a criminal action, the three-month prescription period is easily exceeded.

In either case, the plaintiff may require the assistance of the court to subpoena the identity of an anonymous infringer from the hosting ISP. The statute, however, does not provide for such a remedy.

Finally, although Section 32/3 appears in Part 6 of the  Copyright Act—which lists exceptions to infringement of copyright—it reads like a litigation procedure. If Section 32/3 is intended to demonstrate that ISPs are not liable for unknowingly hosting infringing content on their services, then combining it with a litigation requirement does not further those ends.

The DIP’s Efforts

In an encouraging move, the Department of Intellectual Property (DIP) recently proposed a draft guideline for best practices in notice-and-takedown procedures in the hope that copyright owners and ISPs will be able to work together to stop the dissemination of infringing content on the Internet. Thus far, however, this draft guideline has only been shared with a focus group of major copyright owners as a pilot project and has not yet been distributed publicly or become official.

The DIP also recently circulated a letter stating that it is teaming up with the National Broadcasting and Telecommunication Commission (NBTC) to increase its enforcement efforts against online infringement. To that end, the NBTC will begin working with copyright owners to block access to infringing sites before the end of the year. While the letter does not disclose the method that will be used to block access to sites, this should be seen as a positive step in the fight against online infringement.

The DIP is also exploring the opportunity to collaborate with the Ministry of Digital Economy and Society (formerly the Ministry of Information and Communication Technology) by changing the draft amendment of the Computer Crime Act to provide for blocking infringing content on the Internet. It should be noted that the draft amendment of the Computer Crime Act is not expected to be finalized until sometime next year, so copyright owners may have awhile to wait before this cause of action is available in Thailand.

While the DIP’s recent efforts are not yet close to actual implementation, they demonstrate that the DIP is listening to copyright owners and is intent on addressing online infringement.

Outlook

Section 32/3 of the Copyright Act has created a safe harbor for ISPs by limiting their liability for infringing content which is posted to their services by third parties. However, in these situations, injunctive relief has eluded content owners. Until this matter is resolved, to obtain reliable results content owners should broaden the scope of their enforcement strategies and not limit themselves to Section 32/3 alone.

In addition, the utilization of traditional investigative methods may also be effective in locating and identifying anonymous infringers online. Content owners should actively collaborate with experienced legal counsel in order to create comprehensive enforcement strategies to best protect their digital content.

Download Full Article
Related Professionals

Practices

Intellectual Property

Location

RELATED INSIGHTS​ 

August 20, 2026
As part of its membership in Lex Mundi, Tilleke & Gibbins has released the latest edition of its Guide to Doing Business in Thailand, providing an overview of the legal, regulatory, and commercial considerations for companies establishing or expanding operations in Thailand. The 2026 edition offers practical insight into the country’s business environment, investment framework, and operational requirements. The guide covers a wide range of topics relevant to foreign and domestic investors, including: Investment incentives and promotion schemes Financial facilities and banking regulations Exchange controls and money transfers Import and export regulations Business structures and incorporation options Requirements for establishing a business Operational and compliance considerations Business cessation and insolvency procedures Employment and labor laws Taxation Immigration and visa requirements Prepared by Tilleke & Gibbins lawyers across multiple practice areas, the publication outlines key aspects of doing business in Thailand, including foreign investment restrictions, regulatory compliance obligations, corporate structures, employment requirements, and recent legal and economic developments affecting investors. The publication forms part of Lex Mundi’s Country Guides series, a global collection of jurisdiction-specific reference materials prepared by member firms around the world. Together, these guides help companies evaluate opportunities, compare regulatory environments, and plan international business activities across multiple markets. The full Guide to Doing Business in Thailand 2026 is available through the button below.
Read More
August 13, 2026
Modern agricultural machinery is no longer purely mechanical but instead technology dependent. Modern tractors, harvesters, and other farm equipment increasingly incorporate embedded software, electronic control units, sensors, and digital diagnostic systems. While such technologies enhance efficiency, productivity, and precision farming, they also affect the manner of equipment repair and maintenance. As a result, farmers and independent repair providers may have little practical choice but to rely on authorized dealers, even for routine maintenance and repairs. Section 36 of Thailand’s Patent Act reflects the principle that the authorized sale of a patented invention usually exhausts the exclusive right of the patent owner over the specific product. This means that upon legal sale of the patented product, it can typically be used or resold without further authorization from the patent holder. This principle is relatively straightforward when applied to traditional mechanical equipment. Ownership of a machine ordinarily carries with it the practical ability to diagnose faults, replace worn parts, and restore the equipment to working order. Modern agricultural machinery, however, increasingly depends on embedded software, proprietary diagnostic systems, firmware updates, and other digital resources that may remain under the control of the manufacturer or patent holder. This tension lies within the “right to repair” debate. In the United States, on July 8, 2026, the Federal Trade Commission and five states announced a settlement with Deere & Company resolving allegations that Deere had unlawfully restricted farmers’ and independent repair providers’ ability to repair their equipment. Under the terms of the settlement, for the next ten years, Deere must provide repair resources, including software capabilities, on terms equivalent to those provided to authorized dealers. The Deere settlement highlights that the nature of ownership is changing, but legal concepts have not kept pace. Traditional patent-law concepts, including patent exhaustion, were developed with physical products
Read More
August 10, 2026
Thailand has finalized its social media KYC (“know your customer”) rules under Notification of the Electronic Transactions Commission on Measures to Prevent Technological Crimes for Social Media Service Providers (No. 2), which was published in the Government Gazette on May 5, 2026, and will take effect on November 1, 2026. While an early draft of the notification proposed requiring social media platforms to arrange identification of every user account, the final notification is significantly more targeted, focusing on paid online advertising and advertiser identity verification. Though the regulatory initiative primarily aims to combat online fraud and technology-related crimes, it also has important consequences for intellectual property enforcement, because the verified platform records that will be generated under the new requirements can help IP rights holders to identify anonymous online infringers. Key Regulatory Mandates The notification requires social media service providers to verify the identity of advertisers before their paid advertisements are published and disseminated in Thailand through social media, regardless of whether the advertising fees come from the advertisers or third parties. Verification of an advertiser is valid for one year, after which verification would have to be performed again before the platform could publish additional paid advertisements from the advertiser. Permitted verification methods are specified under the notification. A platform may verify an advertiser by checking identity evidence and confirming the connection between the advertiser and that identity evidence, with the notification giving facial comparison against certain government-issued identity documents as an example. Alternatively, platforms may verify advertisers through a digital identity verification and authentication system with an identity-proofing assurance level not lower than the level prescribed by Thailand’s Electronic Transactions Commission. The notification further requires platforms to retain only the advertiser’s information necessary to identify the advertiser, beginning from the start of the advertising activity and for
Read More
August 6, 2026
Introduction: A Trademark Paradox in Sustainable Packaging Walk into any Thai supermarket, and the label-free water bottle is no longer a novelty. Thailand’s packaging market, valued at approximately USD 15.68 billion in 2025, is shifting toward minimalist, plastic-light designs as ESG pressures reshape how brands present their products. The country generated roughly 5.68 million tons of plastic waste in 2021, with a recycling rate of only 19 percent, and regulators are now considering rules that would allow label-free bottled water relying on embossing, laser printing, or QR codes instead of wrap-around labels. As packaging itself becomes the brand identifier, a paradox emerges: designs built to say the least often struggle hardest for protection under Thai intellectual property law. The Trademark Barrier: When Shape Is Not Enough Section 7, paragraph 2(10) of the Thai Trademark Act deems a shape distinctive only if it is not the natural form of the goods, is not necessary to achieve a technical result, and does not add value to the goods. The Department of Intellectual Property’s 2022 examination guidelines apply this test conservatively, as the following examples illustrate. A plain water bottle relying on subtle contours to signal its brand is typically read as just another bottle, not a source identifier. Acquired distinctiveness offers a theoretical escape route, but it demands extensive evidence of sales, advertising, and consumer recognition—an especially heavy burden for new entrants whose minimalist packaging has not yet achieved market prominence. The result is a structural bias against precisely the design innovation that sustainability goals are meant to encourage. Design Patents: A Partial, Imperfect Substitute Design patent protection, covering a product’s shape, configuration, or ornamentation, appears to offer an alternative route. In practice, it is constrained by the same forces driving the minimalist trend. Because many brands converge on similar solutions—clear
Read More