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 21, 2025
Although the “passing off” principle has sometimes faced criticism for potentially broadening trademark protection—particularly in cases involving unregistered or unconventional marks like shapes, scents, or sounds—it serves an essential purpose. It safeguards the rights of business owners and shields consumers from deception, ensuring fair competition and reflecting the realities of modern commerce. What is passing off, and why is registrability not required? The passing-off principle is a legal concept rooted in English law, aimed at preventing a person from falsely representing or using a mark similar to another’s in a way that causes consumers to mistakenly believe the goods or services come from the same source. Under Thai law, the passing-off principle is provided under Section 46 of the Thai Trademark Act, which states: No person shall be entitled to bring legal proceedings to prevent or to recover damages for the infringement of an unregistered trademark. The provisions of this Section shall not affect the right of the owner of an unregistered trademark to bring legal proceedings against any person for passing off goods as those of the owner of the trademark. The passing-off principle can be interpreted as a practical legal concept. It does not require proof that the mark is registrable or meets the registrability criteria under trademark law. It is sufficient to show that the mark has established goodwill and that the other party’s use of a similar mark is likely to confuse consumers, making it a straightforward and effective tool for protecting brand assets. Requiring a claimant to prove that an unregistered mark could have been registered would undermine the very function of passing off. The doctrine was conceived precisely to fill the gaps left by the registration system. Imposing registrability criteria would nullify its function and leave many commercially valuable identifiers unprotected. If the
Read More
August 15, 2025
Indonesia’s Directorate General of Intellectual Property (DGIP) has introduced a temporary feature in its online filing system to accommodate the submission of annual patent working statements. The requirement to submit these annual working statements was introduced under the amended Patent Law enacted on October 28, 2024, but the implementing regulation has still not been issued. Annual Working Statements Article 20A of the amended Patent Law requires all patentees to submit an annual statement regarding the implementation of their patents in Indonesia. This obligation applies to all active patents, regardless of when they were granted. The annual working statement declares the status of implementation of the patented invention within Indonesia. Acceptable forms of implementation include: Manufacturing the patented product (whether commercialized or not) Utilizing the patented process (whether commercialized or not) Importation Licensing If the patent has not yet been implemented in Indonesia, the DGIP provides an option to indicate: “The mentioned registered patent has not been implemented in Indonesia.” The statement must be made using the official template provided by the DGIP through the online filing system. Submission The working statement must be submitted annually no later than December 31 of each calendar year. No supporting documents are needed for the submission apart from the signed form itself. A color scanned copy will suffice; the original document is not required. There is currently no official fee for submitting the working statement. While the submission process may eventually align with annuity fee payments, the current process remains separate due to the pending implementing regulation. The submission process may be subject to change upon issuance of the implementing regulation, which is under discussion and expected in the coming months. In the interim, the DGIP accepts submissions of overdue working statements, allowing patentees to fulfill their obligations retroactively. This flexibility is expected
Read More
July 31, 2025
The Madrid System for international trademark registration provides the opportunity for a simplified and cost-effective way to register trademarks in multiple countries through a single application. Indonesia joined the Madrid System in 2018, and in 2024 alone, it received over 8,600 applications through this system. Despite the system’s effectiveness, it is important for trademark owners to be aware of the potential risks of refusal that can arise during the process of registration. Trademark applicants must pay close attention to these critical points when designating Indonesia. Appointing a Local Representative to Respond An applicant or representative of an international registration (IR) application that has been provisionally refused must appoint a local Indonesian representative in order to submit a response to the provisional refusal. This appointment is solely for the purpose of responding to the refusal in Indonesia; it is not necessary if the IR has not received any rejection. Furthermore, the local representative should not be registered with WIPO, as doing so would affect representation across all designated countries. Timing When it comes to calculating the deadline for responding to a provisional refusal, there is a discrepancy between the methods used by the DGIP and WIPO. Under the Indonesian Trademark Law, trademark owners can file a response within 30 working days, excluding weekends and national holidays. However, the WIPO cover letter accompanying the DGIP’s provisional refusal notice specifies both the start date and the deadline for responding to the notification, which is calculated as 30 calendar days, including weekends and national holidays. Therefore, a response to the provisional refusal of IR should be submitted in accordance with the WIPO cover letter to prevent any formality issue. Grounds for Refusal After an IR application is published in Indonesia’s Trademark Gazette, it undergoes substantive examination by the Directorate General of Intellectual Property (DGIP) examiners. The
Read More
July 30, 2025
Artificial intelligence (AI) model training and data scraping are essential processes in the development of modern AI systems. AI model training involves using large datasets to teach machine learning algorithms to recognize patterns, make predictions, or generate new content. Data scraping refers to the automated extraction of information from websites or digital sources, often to assemble the vast datasets required for effective AI training. As these practices become more widespread, questions about the legality of using third-party content—especially copyrighted works—have become increasingly important. In Thailand, the legal landscape for AI developers is shaped primarily by the Copyright Act, which presents unique challenges due to the absence of a fair-use exception. This article examines the copyright-related risks and legal uncertainties facing AI developers under Thailand’s current copyright law and practices, offering strategic guidance for navigating this complex environment. Copyright Risks in AI Scraping and Training Thailand’s Copyright Act does not provide a broad fair use or fair dealing exception, unlike some other jurisdictions, such as the United States. This absence has significant consequences for AI developers: No general defense for AI training: Any use of copyrighted material for AI model training is presumed to be infringing unless a specific, narrow statutory exception applies or explicit permission is obtained from the rights holder. There is no general legal basis for using copyrighted works in AI training without authorization. Increased rights clearance burden: Developers must identify and secure licenses for every copyrighted work included in their training datasets. Given the scale and diversity of data required for effective AI models, this process can be both impractical and costly. Legal ambiguity and litigation risk: The lack of clear statutory guidance or case law leaves developers in a legal gray area. There is no established precedent clarifying whether certain uses of copyrighted material for
Read More