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​ 

July 15, 2026
Ambush marketing refers to a strategy in which a business associates itself with an event, campaign, or brand without paying for official sponsorship rights. The tactic is most visible in sports, concerts, and festivals, where official sponsors have invested substantially for exclusivity. Ambush marketers may use suggestive wording, event-themed imagery, athlete endorsements, venue-adjacent promotions, or social media campaigns implying a commercial connection with the event. Common Forms of Ambush Marketing Ambush marketing typically takes one of the following forms: Direct ambushing: using event names, logos, or mascots suggesting authorization Coattail ambushing: sponsoring an athlete or broadcaster connected with the event Subtle ambushing: themed advertising, venue-adjacent campaigns, or similar visual cues The legal analysis in each case turns on whether the marketing crosses from permissible event-based advertising into infringement, passing off, deception, or wrongful exploitation of goodwill, and the risk assessment is necessarily fact-specific. Thailand has no dedicated ambush marketing statute, so legality depends on execution. A campaign that merely comments on a public event may be permissible, but one that uses protected marks, creates consumer confusion, misrepresents sponsorship status, or makes unsubstantiated claims may trigger liability under various Thai laws, as laid out below. Ambush Marketing and Thailand’s Trademark Act The Trademark Act B.E. 2534 (1991) is the primary tool for addressing campaigns that use registered trademarks, event names, logos, mascots, or confusingly similar signs. The law gives registered trademark owners the exclusive right to use their mark for registered goods, and infringement risk arises when a nonsponsor uses an event mark or a confusingly similar sign in advertising. Even referential or playful use may create liability if it causes public confusion as to sponsorship or commercial connection. The law also preserves passing-off claims for unregistered marks. This matters because event names, taglines, or mascots may not always be
Read More
July 13, 2026
When Decree No. 186/2026/ND-CP (Decree 186) takes effect on July 15, 2026, it will introduce the most significant reform of Vietnam’s administrative IP enforcement framework since Decree 99/2013/ND-CP was issued in 2013. These changes are expected to make administrative enforcement faster, more accessible, and better suited to the realities of modern IP disputes. Below are the principal reforms and their practical implications for rights holders and enforcement practitioners. The End of Notarization and Consular Legalization Among the most welcome procedural changes is the abolition of the notarization and consular legalization requirement for powers of attorney (POA) submitted in administrative enforcement proceedings. Under the previous regime, foreign rights holders were generally required to execute a POA, then have it notarized and consular legalized (if seeking customs recordal). In practice, this process frequently delayed enforcement by four to eight weeks, often long enough for infringing goods to disappear before authorities could intervene. Decree 186 removes this bottleneck, now requiring only an original or certified copy of the POA. If the document is in a foreign language, a Vietnamese translation is sufficient, provided it is certified by a competent authority or confirmed by the authorized Vietnamese IP representative. Consular legalization and notarization are no longer required. For rights holders, the practical impact is substantial. Administrative enforcement files that previously took weeks to prepare can now be completed in a matter of days, allowing much faster responses in time-sensitive matters such as warehouse raids, border interventions, and trade-fair enforcement. The decree also introduces a useful administrative simplification. Where an original POA has already been submitted to the same enforcement authority and remains valid, applicants may rely on a copy of that earlier submission by identifying the previous case file. This eliminates unnecessary duplication for rights holders pursuing multiple enforcement actions before the same
Read More
July 9, 2026
Recycling, upcycling, and refill-packaging models are now widely promoted as ways to reduce waste, lower carbon emissions, and respond to consumer demand for sustainable products. However, complications arise when these environmentally driven trends intersect with intellectual property law—particularly where reused or altered packaging continues to display third parties’ registered trademarks. Adding to this complexity, Thailand’s draft Sustainable Packaging Management Act aims to introduce new environmental compliance obligations that businesses must navigate alongside existing trademark concerns. Recycling and upcycling packaging may infringe trademark rights, especially in cases not protected by the first-sale doctrine—the principle that a trademark owner’s rights over a particular mark-bearing product end once the owner first sells it. Furthermore, even refill packaging carries legal risk due to specific statutory prohibitions under Thai law. Compounding these challenges, the draft Sustainable Packaging Management Act will impose extended producer responsibility (EPR) obligations on manufacturers and brand owners, requiring them to manage packaging throughout its lifecycle. These overlapping legal frameworks could deter manufacturers from pursuing ESG-aligned business models unless businesses understand how to navigate both trademark and environmental requirements. Under Thai law, this issue remains uncertain because the Trademark Act does not expressly codify the first sale doctrine, also known as the exhaustion of trademark rights. Generally, this doctrine provides that once a trademark owner has lawfully sold goods bearing its trademark, the owner’s right to control further resale of those particular goods is exhausted. The rationale is that the owner has already received commercial benefit from the first authorized sale; therefore, the purchaser should be free to resell or otherwise dispose of the goods. Although the doctrine is not expressly codified in the Trademark Act, Thai courts have recognized it in relation to genuine goods and parallel imports, as seen in a Supreme Court Judgment No. 2817/2543 in which the
Read More
July 6, 2026
Indonesia’s regulation on reporting online intellectual property (IP) infringement provides comprehensive procedural guidance for IP rights holders and their licensees in reporting online infringement complaints. Issued in December 2025 by the Ministry of Law as Regulation No. 47 of 2025 regarding Handling of Intellectual Property Infringement Reports in Electronic Systems, this regulation covers all types of IP rights. It also specifies documentation when reporting infringement, and lays out the procedures for examination, verification, and enforcement actions. Submission of Complaints Complainants may submit reports through the online system of the Directorate General of Intellectual Property (DGIP) or in person at the DGIP office. Complaints may also be filed through an authorized proxy. Under the regulation, complainants are required to provide the following information and documents: Personal details of the complainant; Brief description of the protected work or subject matter (i.e., type of IP and name or address of the infringing website, portal, account, or application, or a link to the location of the infringing content); Complete description of the alleged infringement; Certificate of registration or recordal of the relevant IP; Recordal of IP license agreement, if any; and Other supporting evidence. Verification and Examination Process Upon receiving a complaint, the responsible formality officer may request clarification or additional supporting documents. In the latter case, the complainant must then submit the necessary administrative documents within 14 days of the notification date. Once the documentation is deemed complete and sufficient, the case will be formally registered. Subsequently, the DGIP will establish a verification team to handle online IP violations, which will include the Civil Servant Investigator (PPNS), the Ministry of Communication and Digital Affairs, experts with relevant expertise in IP, and representatives from related associations such as AVISI (Indonesian Video Streaming Association). After examining the report, the team will prepare the Minutes
Read More