The copyright law currently in effect in Thailand is the Copyright Act B.E. 2537 (1994), which came into force in March 1995. After 20 years, a new amendment came into effect in August 2015, with a focus on updating the law for the digital age, followed by a further amendment that became effective in March 2019 to comply with the Marrakesh Treaty providing exemptions to copyright infringement for people with disabilities.
Recently, to comply with the World Intellectual Property Organization Copyright Treaty (WCT) and update practices in combating online infringement, the Thai Copyright Act has been amended once again. This article will explore the backstory behind this amendment, highlight the law’s successes and potential areas of concern, and explain what copyright owners, practitioners, and—most importantly—internet service providers (ISPs) should be aware of in order to comply with this law, which was published in the Government Gazette on February 24, 2022, and will become effective on August 23, 2022.
The Backstory
Despite the modernizing focus of the 2015 amendment, in recent years Thailand recognized the necessity of strengthening copyright protection and modernizing the law further to cope with online infringement problems fueled by today’s rapid technological change. Previously, the Copyright Act B.E. 2537 (1994), as amended in 2015, provided a specific mechanism to solve online copyright infringement. This mechanism, which appeared in Section 32/3 of the law, differed from the clearly defined notice-and-takedown system favored in several other countries by relying on the courts to resolve copyright infringement matters in relation to the provision on ISP liability and safe harbors. As the law did not include adequate notification procedures or rapid dispute resolution mechanisms, the implementation of Section 32/3 became impractical.
In addition, the definition of an ISP was broad, so “mere conduit” (or intermediary) ISPs would often receive court orders to remove infringing content, even though, technically, most of them were not capable of doing so. As such, the limitation of liabilities or provision of “safe harbors” for ISPs under Section 32/3 was not practically feasible. The Department of Intellectual Property thus initiated amendments to this law, with the goal of enhancing copyright protection in accordance with the WCT, clarifying ISPs’ safe harbors, adopting a notice-and-takedown system, and revising provisions on technological protection measures
Summary of the 2022 Amendments
Two notable changes introduced by the amended act are simple: an extension of the term of protection for photographic works to be the author’s lifetime plus an additional 50 years after the author’s death (an increase from the previous term of 50 years from the work’s creation), and a provision allowing members of the Copyright Committee to stay on the committee past the end of their term if new members have not yet been appointed to replace them.
However, a few other significant developments in the law are considerably more detailed. These are described below.
ISP Safe Harbors
The amended act classifies ISPs into four types:
- Intermediary ISPs,
- Caching ISPs,
- Hosting ISPs, and
- Search engine ISPs.
In addition, the amended act clarifies that “users” of ISPs are legally defined as such regardless of whether payment is required.
With these definitions established, the amended Copyright Act replaces the problematic Section 32/3 (described above) with a new section titled “Exemption of Liability of ISPs.” This newly drafted section sets out both general and specific requirements for ISPs to be exempted from liability for copyright infringement:
- General requirements: ISPs must have explicitly announced and complied with their policies to terminate service to users who are repeat infringers. This requirement applies to all types of ISPs as a general rule.
- Specific requirements: Each ISP must also comply with specific requirements based on its services and technical activities. Under the amended act, the obligation to remove data or block access is only for caching ISPs, hosting ISPs, and search engine ISPs. This clarifies that intermediary ISPs are not required to remove data from or block access to their systems. It is also clear that only hosting ISPs and search engine ISPs are required to provide channels for copyright owners to report infringing content.
Notice-and-Takedown System
The steps in the amended act’s notice-and-takedown procedure are as follows.
- Under the amended act, copyright owners can send a notice of infringement to inform hosting ISPs or search engine ISPs of allegedly infringing data.
- An ISP that has been notified must take down the data, its references, and any access points from their system, or block access, without delay. The ISP must subsequently notify the user who posted the allegedly infringing material to allow the user to oppose the removal by sending a counternotice to the ISP.
- If such a counternotice is received, the ISP then has to forward a copy of the counternotice to the copyright owner and notify the copyright owner that it will bring back the removed content or cease blocking the access within 30 days of receiving the counternotice.
- After the 30-day period ends, unless the copyright owner files a lawsuit against the alleged infringer/user, the ISP is required to restore the data or cease blocking access to it within 15 days.
To prevent ill-intentioned filings, the amended act prescribes that anyone who files a false notice (such as one from someone other than the copyright owner) or false counternotice is liable for any damages arising from that action.
Technological Protection Measures
The amended act revises the definition of technological protection measures (TPMs), broadening the scope to refer to technology designed to protect the rights of a copyright owner or a performer (rights control), and technology designed to effectively control access to a copyrighted work or to a recording of a performance (access control). Therefore, the new definition covers both rights-control and access-control TPMs.
In addition, the amended act revises the provision on TPM violations, defining any act rendering access-control TPMs ineffective as infringement of TPMs, and deleting the requirement of intention to infringe. As for the circumvention of rights-control TPMs, since it leads to actual copyright infringement activities, the circumvention is subject to higher penalties. The amended act further prohibits providing services to circumvent TPMs and imposes liability against anyone who manufactures, sells, distributes, or advertises products or devices intended to circumvent TPMs.
The exceptions for TPM violations in the previous Copyright Act were considered too broad. The amended act addresses this by removing its stipulation of exceptions, instead specifying that the exceptions will be laid out in ministerial regulations to be issued later.
The Good and the Bad
Thailand’s amended Copyright Act contains several positive developments and benefits. First, it increases the length of protection for photographic works to be in line with international standards. Second, the changes to TPM provisions will strengthen enforcement options. Third, the amended act provides mechanisms for hosting ISPs and search engine ISPs to provide easy and accessible channels for reporting infringing content. This should make it easier for copyright owners to report alleged infringing content, and it may also create greater incentives to report such content and thus provide copyright owners and users with greater protection against online infringers. Also, as long as ISPs properly comply with the new procedures, they will be within safe-harbor boundaries that exempt them from liability for the alleged copyright infringement.
However, as this notice-and-takedown system follows the one provided by the United States’ Digital Millennium Copyright Act, which has been in place since 1998, it may not be the most effective measure to cope with current trends in online infringement, particularly with the emergence of different types of social media platforms, online marketplaces for new types of digital content (such as NFTs) and possibly more complex metaverse platforms in the near future.
In addition, the amended act requires that before notifying an ISP of infringing content, copyright owners must take into consideration the allowable exceptions. This means that copyright owners must consider whether the alleged infringing content actually conflicts with the normal exploitation of a copyrighted work by the copyright owner and unreasonably prejudices the legitimate interests of the copyright owner, or whether it possibly falls within the scope of exceptions. It is unclear how copyright owners are to prove the fulfillment of this requirement.
We believe that the amended Copyright Act will equip copyright owners with broader and more advanced tools to tackle copyright infringement as it occurs today. The safe harbor provisions will be greatly beneficial to ISPs whose systems comply with the law. Skepticism remains, however, over how well the system will work in practice and whether these provisions will encourage ISPs to establish internal policies and systems in order to be exempted from liability. Therefore, it will be important for copyright owners to keep a close eye on developments once the amended law comes into effect.
