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​ 

June 27, 2025
Three American giants are actively protecting their intellectual property rights against generative AI, as two legal battles commence on both sides of the Atlantic. In the UK, Seattle-based media company Getty Images accuses UK-based Stability AI of multiple IP infringements. In the US, The Walt Disney Company and Universal Studios are teaming up against Midjourney, an AI startup, with their main ground being copyright infringement. Both cases are centered around questions legal minds have been posing since the introduction of generative AI: Is the output of generative AI an infringement? And who is ultimately responsible for the output, the platform or the user? Getty Images v. Stability AI Getty initially filed a claim in the High Court in 2023, which resulted in Stability applying for reverse summary judgment on the grounds that Getty had no real prospect of success, arguing that their operations took place outside the UK. However, the High Court judge hearing the case decided that the claims brought by Getty did have a real prospect of succeeding in court. Despite this, Stability saw a small victory when the court ruled that the representative action brought by Getty would not succeed due to the difficulties in identifying who qualified for the class. The proposed class was comprised of 50,000 rightsholders who alleged their rights were also infringed. Stability was successful in arguing that identifying these individuals would be challenging due to the unclear definition of the class. This current trial is centered around four main grounds: Copyright infringement. Getty accuses Stability of using content that Getty owns or has an exclusive license for when training their model, Stable Diffusion, resulting in the generated output containing substantial parts of that content. Getty is also alleging secondary copyright infringement, arguing that Stability is importing an article into the UK
Read More
June 26, 2025
As modern business strategies increasingly embrace sustainability, the influence of ESG principles is reshaping product design, packaging, and brand protection. From label-free bottles to the legal importance of 3D marks in Thailand, these developments highlight the growing connection between environmental responsibility and intellectual property. The Rise of ESG ESG principles have become critical in shaping business strategies worldwide. Companies are increasingly required to disclose ESG data, which influences investor decisions, loans, and consumer behavior. Studies show that consumers are willing to pay more for sustainable packaging, and businesses with strong ESG commitments often achieve higher growth rates. Product Minimization Trend One sector experiencing significant transformation is the consumer product industry, where brands worldwide are adapting their packaging to align with ESG principles. A notable approach is packaging minimization, exemplified by Pepsi’s introduction of its first label-free PET bottle in China in 2022. Similarly, in Thailand, several bottled water brands have embraced label-free designs, including Sprinkle drinking water’s “Redesign to Reduce” initiative and other similar efforts. These shifts not only enhance brand perception but are also warmly welcomed by consumers and business associates alike. For instance, Cathay Pacific has introduced label-free bottled water on select flights and cabins as part of their ongoing commitment to boosting onboard recycling efforts. From Design to Distinctiveness with 3D Marks Packaging has evolved into a critical component of brand identity, blending functionality with distinctiveness to strengthen consumer recognition and loyalty. This shift carries significant implications for intellectual property. Protecting these designs is no longer optional but essential, given their substantial commercial value. Securing legal protection—whether through design rights or three-dimensional (3D) trademarks—has become a strategic necessity. In an era shaped by sustainability and innovation, safeguarding distinctive packaging is not just a precaution but a fundamental step in maintaining competitive advantage and ensuring enduring brand
Read More
June 20, 2025
In a decisive move to strengthen its trade position and reinforce commitments under ongoing tariff negotiations with the United States, the government of Vietnam has made a concerted effort to improve intellectual property enforcement within the country. A key catalyst for this was the prime minister issuing a decision requesting all authorities to initiate sweeping enforcement actions to crack down on counterfeit goods across all provinces. Our firm has been actively involved in these operations. Working in close coordination with Vietnam’s Market Surveillance Authority, Customs, and Border Police, the firm has been instrumental in planning, intelligence gathering, and on-site enforcement. Key operations were conducted in major commercial hubs, including Hanoi and Ho Chi Minh City. In Hanoi, we collaborated with Market Surveillance Team No. 1 to inspect a major wholesaler in Hang Giay. These inspections resulted in the seizure of a significant volume of counterfeit perfumes and the identification of key suppliers within the illegal trade network. In Ho Chi Minh City, our firm supported large-scale inspection campaigns at well-known markets, including Saigon Square. Acting on intelligence, authorities executed multiple raids targeting shops and stalls notorious for selling counterfeit branded products. Specialists from our firm provided logistical support and real-time analysis to ensure swift and effective intervention. Beyond Vietnam’s urban centers, efforts extended to critical border zones in northern and central Vietnam. We worked with Customs and Border Police at major checkpoints to inspect high-risk shipments suspected of containing counterfeit goods. These operations led to the interception of several container loads of illicit products. The nationwide campaign also included targeted actions in several provinces known as hubs for storage and distribution. In Bac Giang, Da Nang, Hai Phong, Kien Giang, and Dong Nai, we assisted in coordinated raids on medium- to large-scale warehouses and distribution centers. These inspections uncovered
Read More
June 17, 2025
On January 9, 2025, the Lao official gazette published the newly amended Decision on Trade Inspection Implementation No. 0019/MOIC, dated January 6, 2025. This decision aims to establish principles and rules for trade officers to inspect, fine, and take measures against violators of trade laws and their related regulations on business competition, business operations, and intellectual property rights to protect consumers and business operators in Laos. Changes in Trade Inspection Procedures Previously, trade inspection officers, operating independently under the central Ministry of Industry and Commerce (MOIC) or the provincial-level Department of Industry and Commerce (DOIC), were responsible for administrative raid actions focusing exclusively on intellectual property issues. However, following the enactment of Decision No. 0019/MOIC, trade inspection officers will now be grouped into the Trade Officers Unit, which will also include business competition officers and consumer protection officers. This unit will conduct and participate in raids, considering not only intellectual property laws but also competition and consumer protection laws when imposing penalties on infringers. Trade Inspection Authority Levels Trade inspection implementation is overseen by authorities at three levels: Central level: Department of Business Competition and Trade Inspection, MOIC. The MOIC handles trade inspection work covering all provinces in Laos. Provincial level: DOIC offices in provinces and Vientiane handle trade inspections covering two or more districts. District level: Office of the Industry and Commerce offices in districts. Violations Individuals, legal entities, and organizations violating the newly amended trade inspection decision, the Decree on Trade Inspection, or other related regulations will be educated about the issue, warned, disciplined (for government servants), fined, subject to compensation for damage incurred, or punished by the relevant laws, depending on the gravity of the violation. Trade Violations Violations of trade laws and regulations concerning business operations will result in fines and additional measures. Examples include:
Read More