The increased efficacy of Thailand’s amended copyright act

On 24 February 2022, Thailand amended its Copyright Act B.E. 2537 (1994)—previously amended in 2015 and 2019—to comply with the World Intellectual Property Organization Copyright Treaty (WCT) and update practices in combating online infringement. The amended law became effective on 23 August 2022.

One motivation for the amendments was the rise of online infringement in recent years. The 2015 amendment’s Section 32/3 had provided a court-based mechanism addressing online copyright infringement. However, the law did not include adequate notification procedures or rapid dispute resolution mechanisms, and implementation of Section 32/3 became impractical.

In addition, the definition of an ISP was broad, so “mere conduit” ISPs would often receive court orders to remove infringing content—a practical impossibility for most of them. Thus, limitation of liabilities or provision of “safe harbors” for ISPs under Section 32/3 was not practically feasible.

Summary of 2022 Amendments

Two notable changes in the amended act are simple: an extension of the term of protection for photographic works to be the author’s lifetime plus 50 years (increased from the previous term of 50 years from the work’s creation), and a provision allowing Copyright Committee members to stay on the committee past the end of their term until replacement members are appointed.

A few other significant developments in the law are more detailed:

• ISP Safe Harbors. The amended act classifies ISPs as intermediary, caching, hosting, and search engine ISPs. With these definitions established, the amended Copyright Act replaces the problematic Section 32/3 with a section that sets out both general and specific requirements (i.e., applying to all types or specific types, respectively) for ISPs to be exempted from liability for copyright infringement.
• Notice-and-Takedown System. The amended act establishes a notice-and-takedown procedure specifying periods for notices and responses, and detailing criteria for blocking and restoration of content. To prevent ill-intentioned filings, the amended act prescribes that filing 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 broadens the definition of technological protection measures (TPMs) to include both rights-control and access-control TPMs. The amendment also defines rendering access-control TPMs ineffective as infringement of TPMs, thus removing the requirement of intention to infringe. Moreover, circumvention of rights-control TPMs is subject to higher penalties, and liability is extended to parties providing services to circumvent TPMs. Finally, the amended act removes its stipulation of exceptions (considered too broad in the previous Copyright Act), noting that these will be prescribed by ministerial regulation.

Analysis

Thailand’s amended Copyright Act contains several positive developments. First, it increases the length of protection for photographic works to conform to international standards. Second, the changes regarding TPMs 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—allowing compliant ISPs to be within safe-harbor boundaries that exempt them from liability for infringing content.

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 address current online infringement trends.

In addition, the amended act requires that before notifying an ISP of infringing content, copyright owners must first consider the allowable exceptions—that is, 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. It is unclear how copyright owners are to prove fulfilment of this requirement.

In summary, the amended Copyright Act equips copyright owners with broader and more advanced tools to tackle copyright infringement as it occurs today, though copyright owners will need to keep a close eye on the amended law’s practical effectiveness once it comes into force.