Thailand Toughens Copyright Law To Deal With Internet Providers, Unlawful Movie Recording In Theaters

BANGKOK – Thailand has toughened its copyright law to include, for the first time, responsibility of intermediaries, or internet service providers, for infringement of copyright work on the internet, and separately, to penalise people who record movies being shown in theatres without authorisation with a maximum imprisonment of four years.

The amendments to the Copyright Act, the first since the law was enacted in 1994, are contained in two separate bills that were passed into law in February 2015. But the amendments on unlawful recording of movies in theatres will come into force on 6 April while those on the intermediaries will take effect on 4 August.

The amendments that deal with the responsibility of intermediaries put the burden of initiating a legal case against any infringement of copyright on the internet on the copyright owner. It says in making a request in a filing with the court, the owner of copyright may ask the court to give an order to “service provider” to stop any violation of his copyrighted work in the computer system of the service provider.

In defining the term “service provider,” the amendments borrow the meaning from another existing law known as the Computer Crime Act of 2007, which covers providers of technical access to the internet, providers of platforms for communication between or among people, and providers of computer data storing.

However, in legal cases prosecuted under the Computer Crime Act, people who are webmasters, website owners, or people who provide content on the internet and allow readers or users to comment or post on their web pages are also regarded as service providers.

In the amendments to the Copyright Act, a copyright owner may request the court to order the service provider to remove the work claimed to have infringed upon his copyright from the provider’s computer system within a period of time to be set by the court, or to stop the infringement by other means. It also says the court order shall take immediate effect, and the service provider shall be notified of the court order without any delay.

The amendments say after the court gives its order to stop the infringement, the copyright owner shall carry out his prosecution against the offender within the period of time where the court sets for the termination of the infringement in the service provider’s computer system.

“If the copyright owner fails to do so, the service provider may put the work claimed earlier to have violated the copyright back on his web page again without any further liability,” an official of Department of Intellectual Property (DIP), Ministry of Commerce, explained to Intellectual Property Watch.

The official, who declined to be named because of ministerial procedures, said these amendments were meant to exempt internet service providers from liability for copyright infringement.

Furthermore, the amendments say the service provider shall not be liable for the infringement prior to the court order and after the court order ends its force. But this will be the case only if the service provider is not the person who controls, initiates, or orders the infringement in his computer system, and has complied with the court order. The service provider shall not be liable for any damage incurred from the implementation of the court order either.

The amendments say in making a request for terminating any violation of his copyright on the internet, the owner must provide the court with clear details of name and address of the service provider, the copyright work claimed to have been infringed upon, the work alleged to have violated the copyright, details and evidence of the infringement, and damage that may arise from the alleged infringement.

At a recent public discussion on copyright issues, however, speakers doubted the effectiveness of the amendments in stopping copyright infringement on the internet.

“The web page that violates copyright may not be located in Thailand,” said Suchart Thammapitagkul, a private lawyer whose specialised areas cover intellectual property. “The server may be located overseas where Thai law could not be enforced.”

The DIP official said so far there has been no complaint about involvement of service providers in copyright infringement. “It’s time for us to adjust ourselves in responding to demand of copyright owners and for the image of our country in international community,” the official said.

In the same amendments on responsibility of intermediaries, the law also includes safeguards of information or technology installed to protect copyright work, known as right management information and technological protection measures.

Right management information is information, numerical figures or code identifying the author, the work created, performer, performance, copyright owner, or period of time and conditions permitted in making use of the copyright work that is attached to or appear on the copyright work or record of performance.

Technological protection measures are the technology designed to prevent any reproduction or limit access to the copyright work or record of performance, such as password and encryption.

The amendments say any deletion or alteration of right management information knowing that such action may lead to, facilitate, or cover up any infringement of copyright or right of performers shall be deemed as a violation of right management information.

The new law also says people bringing into Thailand copyright work or its copy knowing its right management information has been deleted or altered, if this is meant for sale or distributing to the public, will be deemed as violating the right management information as well.

Committing a violation of right management information or technological protection measures could be subject to a fine of 10,000 baht (approx. US$312) to 100,000 baht (US$3,125). If such violation is meant for commercial purposes, the offender could be subject to an imprisonment of three months to two years, or a fine of 50,000 baht (US$1,562) to 400,000 baht (US$12,500), or both.

In a separate amendment law that will come into force on 6 April, it says recording of movies being shown in theatres, in part or in whole, without any authorisation shall be seen as an infringement of copyright, which shall be punished with an imprisonment of six months to four years or a fine of 100,000 baht (US$3,125) to 800,000 baht (US$25,000), or both.

The DIP official said these amendments arose from demands of Thai movie makers, rather than distributors of foreign films.

In this amendment law, it says any reproduction or adaptation for the benefit of the disabled of copyright work which they have no access to and which is not for commercial purposes shall not be deemed as a copyright infringement.

Slight Amendments to Trade Secret Law

The Thai government has also made slight amendments to the Trade Secret Act of 2002, which went into force on 6 February. The amendments changed the composition of the trade secret committee to have the permanent secretary of Ministry of Commerce as its chair and the DIP director general as the vice chair. It also includes two other senior government officials as its ex officio members. Previously, the chair came from the private sector and most of the committee members could be from private companies.

The amendments also lower requirements of the chair and committee members to the effect that now that they can come from profit-making private companies.

The amendments reduce penalty for officials who are responsible for taking care of trade secret of private owners and have unlawfully disclosed such secret from a maximum imprisonment of 10 years or a maximum fine of two million baht (US$62,500), or both, to the current maximum imprisonment of two years or a maximum fine of 200,000 baht (US$6,250), or both.

The amendments also cut the penalty for government officials or members of the trade secret committee who have learnt trade secret from private owners and have unlawfully disclosed it from a maximum imprisonment of seven years or a maximum fine of one million baht (US$31,250), or both, to the current maximum imprisonment of one year or a maximum fine of 100,000 baht (US$3,125), or both.

Officials of the DIP said these reductions are to comply with international standards as the previous penalty was too severe for the offence committed.