Thailand – Amendment to Copyright Act
On 23 August 2022, the Amendment to Copyright Act No.5 B.E.2565 (2022) (the “Amendment”) has officially become effective. The purpose of the Amendment is to bring Thailand into compliance with the World Intellectual Property Copyright Treaties (WCT). Furthermore, it aims to strengthen copyright protection and address an issue of online infringement in order to promote creations of copyright work and keep up with significant changes in consumer behavior toward digital contents by making copyright law more suitable for the ever-evolving digital environment.
The substantial changes are as follows:
- The definitions of “Service Providers” and “Service Users” were added to the interpretation section of the Act. In regard to internet service providers (ISPs), a more precise definition has been given, categorizing ISPs into four types:
- Intermediate ISPs (service providers that provide transmission of computer data or access to communication network);
- Caching ISPs (service providers that temporary store computer data on the platform);
- Hosting ISPs (service providers that offer storage of computer data provided by the users) and
- Search engine ISPs.
In addition, “Service Users” are defined as the users of ISPs, regardless of whether the payment is needed.
- The detailed exemption of liability provisions were introduced, providing safe habours to ISPs who publicly disclosed and adhered to their measures on terminating their services for repeated infringers. In addition to said requirement, the Amendment explicitly specifies the conditions under which each type of service provider must comply in order to qualify for the exemption. For instance, hosting ISPs must not have any knowledge or ought to know upon illegal activities on their network or platform and must promptly remove or disable access to the infringing contents upon their knowledge.
- Section 32/3, which was practically deemed ineffective as it required copyright owners to file a petition with the court to obtain an injunction against ISPs to remove or disable access to infringing information, was replaced by a notice-and-takedown system specified in sections 43/6 to 43/8 of the amended Act. The key concept of the notice-and-takedown system, which is modeled after that prescribed in the United States’ Digital Millennium Copyright Act, is that after being notified of an infringement by the copyright owner, ISPs must promptly remove such information or disable access to such information and notify the alleged users. However, the alleged users may file a counter-notice to ISPs, of which a copy must be forwarded to the copyright owner without delay. Unless the copyright owner file a lawsuit against the alleged users within 30 days after the receipt of the counter-notice, the ISPs shall restore the disputed information to their system or allow access to such information.
- The Amendment removes photographic work from Section 21 of the Act, extending the protection period of such work from 50 years from the date of its creation or 50 years from the date of its publication if the work is published during such period, to 50 years after the death of the author.
- Infringement of technological protection measures (TPMs) was redefined as any action that makes access control TMPs ineffective, regardless of knowledge requirement. This also applies to service providers, sellers, manufacturers, distributors of products (including computer programs) or devices who know or should know that the main purpose of such services, products, or devices is to circumvent TPMs.
Overall, the Amendment provides some clarification and legal certainty in relation to copyright protection of digital contents, as well as a rapid legal measure against online copyright infringement without going through court process. In addition, proportionality has been considered not only to protect copyright owners, but also to protect service providers’ interests by holding those who made false notice/counter-notice under notice-and-takedown system liable for any damage caused.