2.          Copyrights^©

The Copyright Act of 1994 protects literary, artistic works and performance rights by making it unlawful to reproduce or publish such works without the owner's permission.

Copyright Amendment Bills were approved on 31 January 2015. The Copyright Act (No. 2) B.E. 2558 (A.D. 2015) will become effective on 4 August 2015, while Copyright Act (No. 3) B.E. 2558 (A.D. 2015) became effective on 6 April 2015.

(Source: Informed Counsel, Tilleke & Gibbins, Vol. 6 No. 1, February 2015)

2.1        Works Subject to Copyright

The Copyright Act protects works in the categories of literary work, including computer programs; dramatic, artistic and musical work; audiovisual material, cinematic film, recorded material; disseminated pictures or disseminated sound; or any other works in the fields of literature, science or fine arts.

The Copyright Act also protects computer software against reproduction or adaptation, publicity and rental of such software. Algorithms are not protected, however.

The “copyright” as defined by the Act means “the exclusive right to take any action concerning the work created or made by the creator”. The Copyright Act also defines the word “creator” as the person who makes or creates the work which is a copyright work.

A copyright belongs to the creator of a work, subject to the following conditions:

(1)        In the case of unpublished work, the creator must be of Thai nationality or reside in Thailand or be a national of or reside in a country which is a member of the Convention on the Protection of Copyright, of which Thailand is a member, provided that the residence at all times or most of the time is spent on the creation of the work.

(2)        In the case of published work, the first publication must be made in Thailand or in a country that is a member of the Convention on the Protection of Copyright. In the case where the first publication was made outside Thailand or in a country which is not a member of the Convention, the work created must have been published in Thailand or in a country which is a member of the Convention within 30 days from the first publication, or the creator must have the qualification as prescribed in (1) at the time of the first publication.

In case where the creator is required to be a person of Thai nationality, and if the creator is a juristic person, such juristic person must be established under the Civil and Commercial Code of Thailand.

2.2        Copyright^© Infringement

The Copyright Act includes a comprehensive list of the types of infringement covered by law:

Infringement by reproduction without authorization -- The Act defines the word “reproduction” as follows: “Reproduction includes copying by whatever means, imitating, duplicating, making printing blocks for, recording the sound of, taking pictures of, or recording the sound and taking pictures in substantial parts of the originals, from copies or from the publication, regardless of whether of the whole or in part.”

Infringement by adaptation without authorization -- Adaptation, as defined by the Act, means reproduction by conversion. This involves substantial modification or emulation of the original work without creating a new character whether of the whole or in part.

·           With regard to a literary work, it shall include a translation, a transformation or a collection by means of selection and arrangement,

·           With regard to a computer program, it shall include a reproduction by means of transformation, modification of the program for the substantial part without the appearance of creating a new work,

·           With regard to dramatic work, it shall include the transformation of a non-dramatic work into a dramatic work or dramatic work to a non-dramatic work, whether in the original language or in another language,

·           With regard to artistic work, it shall include the transformation of a two-dimensional work or a three-dimensional work into a three-dimensional work or a two-dimensional work respectively, or the making of a model from the original work,

·           With regard to musical work, it shall include an arrangement of tunes or an alteration of lyrics or rhythm.

Infringement by publicizing without permission -- It is an infringement of copyright to publicize a work without the consent of the copyright owner. “Publicize” means “present to the public by showing, lecturing, praying, playing, presenting with by sound and/or picture, constructing, distributing, selling, or by other means, the works done or created.” The word “public” refers to the person or persons who are present, and not to the place where the performance occurs. A performance will not be regarded as being carried on in public if it is restricted to family and friends of the performer or of whoever is responsible for the performance

Infringement by producing audiovisual material, cinematic film, recorded material or dissemination of sound or picture whether of the whole or in part, or by rebroadcasting of sounds and visual images, whether of the whole or in part, or arranging for dissemination of sound or picture in public with commercial purposes.

Infringement by unauthorized recording of movies in cinemas, even for personal use. Violators of this provision may be subject to the penalties listed in Section 69/1 of the amended Copyright Act, which include imprisonment for six months to four years, or a fine ranging from B100,000 to B800,000 ($3,000 to $24,000), or both.

Infringement by manipulation of rights management information (RMI), provided that the manipulator is aware that his or her actions could infringe a copyright or performers’ rights. Under the amended Copyright Act, RMI infringement also occurs where the act of importing into Thailand for sale or making available to the public any copyright-protected work is done with the knowledge that the RMI of such work has been removed or altered.

Infringement by circumventing technological protection measures or offering such a service is prohibited if a person is aware that such act could constitute infringement of a copyright or performers’ rights. Under the amended Copyright Act, criminal liability is imposed on a person who commits such an act.

Infringement of the moral rights of performers. Under the amended Coppyright Act, a performer has the right to identify himself or herself as the performer of his or her performances and to prevent his or her assignee or any other person from any modification of his or her performances that would be prejudicial to his or her reputation or dignity.

2.3        Exceptions

·         Under the Act, any act that might ordinarily be deemed copyright infringement may not be so deemed if done for the following purposes:

·         Research or education, without any commercial purposes;

·         Use for one’s own benefit or for the benefit of himself and a member of one’s own family, or close relatives;

·         Comment, criticism or recommendation of the work, with recognition of the copyright ownership of such work;

·         Presenting news or otherwise reporting through the mass media, with recognition of the copyright ownership of the work;

·         Reproduction, adaptation, performance or presentation for a court hearing or consideration by competent and authorized officers or for reporting on the outcome of such hearing or consideration;

·         Copying, duplicating or adapting parts of the work, or making extracts or summaries, by teachers or by educational institutions for the purpose of distributing or selling to students in school classes or in educational institutions, provided that such activities are not for commercial purposes;

·         Use of the work as parts of questions and answers in examinations.

·         The amended Copyright Act provides an exception for reproduction or adaptation of copyright works for the benefit of disabled persons is not considered copyright infringement, provided it is for non-profit purposes.

·         Circumventing technological protection measures where circumvention is allowed is also permitted under the amended Copyright Act – for example, circumvention for the purpose of testing security problems of computer systems.

The Act also entitles librarians to reproduce works copyrighted under the Act, provided that complete reproduction is not done for commercial purposes. Furthermore, the amended Copyright Act states that deletion or change made to RMI by an authorized official or educational institution is permitted.

In addition, citing, copying or imitating certain parts of the copyrighted works under the Act, with recognition of the copyright ownership of the work, shall not be deemed to be copyright infringement.

The amended Copyright Act explicitly recognizes the exception of copyright infringement under the first-sale doctrine. This new section stipulates that any distribution of original or copied copyrighted work — the ownership of which is lawfully acquired — does not amount to copyright infringement. This exception applies to all copyrighted works that are recognized by the Thai Copyright Act

Further, with the understanding that copyrighted works sometimes need to be duplicated in order to allow a computer system to function, the amended Copyright Act provides an exception to reflect this need, similar to exceptions contained in the copyright laws of many countries. Section 32/2 stipulates that any duplication of a copyrighted work that is required to be made in order to allow a computer system to function normally shall not be deemed as an act of copyright infringement.

2.4        Works Not Subject to Copyright under the Copyright Act.

The Act specifically provides that the followings are not deemed eligible for copyright protection:

·           Daily news and facts that are, by nature, merely news items;

·           The Constitution and laws;

·           Announcements, orders and regulations of ministries, bureaus, departments or any other agency of the state or local jurisdiction;

·           Court judgments, orders, rulings and official reports;

·           Translations and collections of those items specified as above which are prepared by government agencies or local administrations.

2.5        International Copyrights

The Copyright Act of 1994 protects copyright works of a creator and the rights of a performer of a country party to conventions on copyright protection or conventions on performance rights protection to which Thailand is a party, or for works copyrighted under international organizations of which Thailand is a member.

2.6        Licensing and Assignment of Copyrights

The 1994 Act provides that a copyright owner is entitled to assign license to another person, whether of the whole or in part, to use or exercise rights with respect to his copyrighted work. The Act requires that an assignment of copyright by means other than inheritance must be made in writing and signed by the copyright owner and the assignee. In the event the assignment is made without specifying the assignment period, the assignment shall be valid for 10 years.

In the event of an assignment of a copyright, the creator of the copyrighted work retains the right to forbid the assignee to distort, shorten, adapt, or act otherwise in any manner against the work if such act would cause damage or injury to the reputation or prestige of the creator.

2.7        Copyright Protection Period

A copyright in literature, drama, artistry or music is valid throughout the lifetime of the creator, and for an additional 50 years thereafter. In the event the creator is a juristic person, the copyright will be valid for a period of 50 years following the creation of the work. The copyright for applied artistic work is valid for a period of 25 years following the creation of the work.

2.8        Penal Provisions

Persons who commit copyright infringement by means of reproduction without permission from the copyright owner may have a fine from 20,000 to 200,000 baht imposed upon them. If the copyright infringement is deemed to have been committed for commercial purposes, the offender may face punishment of imprisonment for a term from six months to four years, or a fine from 100,000 to 800,000 baht, or both.

The amended Copyright Act broadens the scope of civil remedies available for copyright infringement by applying the concept of punitive damages. Section 64 of the Act, an existing section, has been amended to include a second paragraph which allows a competent court to double the amount of damages determined under the criteria set out in the first paragraph of the same section in the event that there is clear evidence that the copyright or performer’s right was infringed on with the intention to allow the work to be widely accessible by the public.