Accession to WIPO Copyright Treaty and Development of Copyright Act under the Digital Era

The Cabinet has approved Thailand to access to be a member of the WIPO (World Intellectual Property Organization) Copyright Treaty (“WCT”). It can be considered as an upgrade version of the Berne Convention for the Protection of Literary and Artistic Works which Thailand has become a member since 1931. The WCT main purposes are for the protection of works and the rights of authors/creators, i.e. right of distribution and making the works available to the public, right of rental and right of communication to the public, in the digital environment. In order to officially enforce the provisions of WCT after being the member, Thailand has to amend its relevant laws and regulations to be in compliance to those of the WCT.

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It is found that the provisions of current Copyright Act B.E. 2537 and its amendments (“CP Act”) still do not comply with those of the WCT and that some of them are out of date and difficult to be enforced. The main issues are the duration of protection of a photographic work, exemptions to copyright infringement and technical protection measures.

The Department of Intellectual Property, who is in charge of the CP Act, had proposed the amendment to the current CP Act (“New Amendment”) to the Cabinet and that the Cabinet approved in principle on such New Amendment and passed on the same to the Council of State and relevant authorities for their consideration and comments before returning it back to the Cabinet for its final consideration and approval before submitting it to the National Assembly. Key issues of this New Amendment are as follows:

  1. The period of protection of photographic work will be changed from a period of 50 years from the date of making of such photographic work to be until a lifetime of author/creator and the other 50 years after the author/creator has passed away.
  2. The limitation of liability measures for an online service provider, called “Notice and Takedown” will be amended as the current one is very difficult to be enforced as its need an order from a court prior to taking the infringing works down from the online platform. Notice and Takedown according to the current CP Act creates burden to the author/creator to file a petition to the court ordering for taking down such infringing works. Under the New Amendment, the duty of author/creator will be changed to be sending a notice containing information as specified by the New Amendment in relation to the infringing works to the service provider and that the service provider must take down such infringing works from their online platform under certain conditions. Moreover, the New Amendment provides terms and conditions in order to consider whether any particular action of the service provider is considered and fallen under the limitation of liability to the copyright infringement. Those amended provisions are similar to that of the 1998 Digital Millennium Copyright Act of the US.
  3. The New Amendment also amends the provisions in relation to technology protection measures to make it more enforceable and that it extends the penalty to include the persons who provide the service or offer to provide the service to evade the technology protection measures and the persons who sell, produce, offer for sale, lease, offer for lease, arrange and import any device or material or any part thereof to be considered as evading the technology protection measures and that such persons will be penalized under this New Amendment.

The authority who drafts this New Amendment is trying to lift up a standard of copyright protection and its related measures to meet the international level and comply with those of the WCT which Thailand will become the member soon. We hope that this New Amendment will reduce the copyright infringing issues and provide more protection to the copyright owner without creating more burden to the relevant parties.

Author: Panisa Suwanmatajarn and Danuvis Bunnag

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