In preparation for Thailand’s acceding to the World Intellectual Property Organization Copyright Treaty (WCT), the amendment to the Copyright Act has been discussed for several years. Finally, on February 24, 2022, the Copyright Act (No. 5) B.E. 2565 (2022) (“the Amended Copyright Act”) was published in the Royal Thai Gazette with an effective date of August 23, 2022, marking the fifth amendment since the implementation of the Act in 1994. The amendment pertains to on-line piracy and technological protection measures, as it aims mainly to accommodate the rapid change of technologies as well as consumer behavior to provide efficient protection for copyrighted works. This is the second amendment to address online piracy after the previous amendment (the “Superseded Copyright Act”) on the same issue was just enacted in 2018.
The key points of amendment can be summarized as follows.
Service providers are mentioned only briefly in the Superseded Copyright Act as a part of the provision regarding the court procedure for copyright owners to request the removal of infringing on-line contents. To the contrary, the Amended Copyright Act recognizes the various kinds of service providers and expressly categorizes them into 4 groups, namely, (i) the intermediary for data transmission, (ii) the data-caching service provider, (iii) the hosting service provider, and (iv) the data-locating service provider (i.e., search engine). A different procedure for requesting the removal of infringing content and different statutory conditions for liability exception are applied to different types of service providers.
The procedure under the Superseded Copyright Act is court-centered. In particular, a copyright owner has to file a petition with the court seeking its order for the service provider to suspend the infringing activity or remove the work claimed to be infringing data. In the petition, apart from establishing their copyright ownership and identifying the infringing data, the copyright owner is required to elaborate other information including the cognizance process, the date and time when the infringing activity was found, the details of the infringing act or behavior, the potential damage caused by the allegedly infringing act and the relief demanded. In practice, the procedure is time-consuming and very difficult to complete. Moreover, the court order (if granted) will be temporarily enforceable during the period as indicated by the Court, and the copyright owner is required to initiate a court action within the said period. Otherwise, the order shall automatically expire. This causes difficulty to obtain a court order especially in case where the infringer is unknown or located outside Thailand.
Pursuant to Sections 43/6 and 43/7 of the Amended Copyright Act, a private procedure of notice and takedown is introduced. The copyright owner can now directly send a written notification electronically to the service provider involved requesting it to remove or disable the access to the allegedly infringing data or the reference or link thereof. It should be noted, however, that only two types of services providers, namely the data-hosting service provider and the data-locating service provider, fall under these two sections. Since the request is made directly to the service provider, the copyright owner does not need to specify potential damage caused by the allegedly infringing activity and the relief demanded. The necessary information that needs to be mentioned by the copyright owner includes the copyrighted work alleged to have been infringed and the allegedly infringing data. If the request is made to a data-hosting service provider, the copyright owner must also provide sufficient details for the service provider to be able to remove or disable the access to the allegedly infringing data. If the request is made to a data-locating service provider, the reference or link to the allegedly infringing data together with details which will enable the service provider to locate such reference or link must be provided. Upon receipt of the removal request from the copyright owner, the service provider must comply without unnecessary delay. Additionally, the service provider must notify the alleged infringer of the request and allow it to submit a counter-statement. Then, the service provider must provide a copy of such counter-statement to the copyright owner and inform it that the removed data, reference or link will be reinstated after thirty days from the date of receipt of the counter-statement unless the copyright owner files a complaint against the alleged infringer with a court. (In Thailand, the only court which can accept such complaint is the Intellectual Property and International Trade Court.)
This new procedure will undoubtedly benefit copyright owners because the presumption that there is copyright infringement will be based solely on the information provided by the copyright owner and the allegedly infringing data can be quickly removed or blocked. The alleged infringer will have the burden to prove otherwise. More importantly, the removal or blocking is possible even in case where the alleged infringer is unknown or located outside Thailand.
The Amended Copyright Act has provisions on exemption of service provider liability–the so-called “safe harbor” provisions. Each type of service provider is required to fulfil different statutory conditions in order to be exempted from liability. Generally, these service providers shall merely provide services automatically pursuant to their customers’ requests without any initiation or intervention by the providers themselves. Specifically, an intermediary for data transmission must not initiate the transmission of, choose or modify the allegedly infringing content or store a copy thereof in its system or computer network in a manner ordinarily accessible to anyone and for a longer period than necessary. For another instance, a data-caching service provider must temporarily store the allegedly infringing data by means of an automatic technical process, transmit it without any modification of its content and comply with the conditions for data access prescribed by the originating website. Additionally, it must remove from its system or network or disable access to the temporarily stored data promptly upon knowledge of the fact that the originating website has removed from its system or network or disable access to such data or that a court has ordered the originating website to so proceed. Meanwhile, the conditions imposed on data hosts or data-locators are similar. Firstly, a data host must not have been aware of the infringing data on its system or network while a data locator must not have been aware that the data has been created by infringing someone’s copyright. Secondly, both the data host and the data locator must have promptly removed the data or disabled access to it or its reference or link upon knowledge or notification of the alleged infringement. The Amended Act also recognizes the concept of the vicarious liability that the provider shall not receive any monetary benefit directly attributable to the allegedly infringing activity in case where it has the right and ability to control such activity. In addition, it must have made available a way to receive notifications of infringement activities. Lastly, all types of providers shall announce and implement the policies for terminating services for repetitive infringers.
According to the Superseded Copyright Act, the term “technological protection measures” is defined as a technology designed to prevent the reproduction of a copyrighted work or to control access to such work or the recording of a performance, and such measures are efficiently utilized for such purposes. Under the Amended Copyright Act, the scope of the term has significantly been broadened. The term is now defined as (i) any technology that protects the rights of copyright owners and performers or (ii) any technology that is efficiently utilized to control the access to a copyrighted work or the recording of a performance.
Furthermore, by virtue of Sections 53/4 and 53/9 of the Amended Copyright Act, acts which can be deemed infringing technological protection measures are not only those which cause the measures for access control to be ineffective but also include the manufacture, sale, distribution and promotion of sale and service of products or equipment having the main purpose of causing the measures to be ineffective.
Lastly, the term of protection for photographic works has been substantially increased from fifty years from creation to the duration of the life of the author plus fifty years after the death of the author.
Copyright owners should make themselves familiar with the points of amendment to be able to make the most of their rights. It would also be prudent for service providers to review their policies and measures against allegedly infringing data on their platforms to ensure that they comply with the new requirements for liability exemption.