Tag: copyright

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USTR Annual Review on Thailand Intellectual Property Protection 2023

The Office of the United States Trade Representative (USTR) conducts an annual review of intellectual property (IP) protection and enforcement in U.S. trading partners worldwide. Countries are categorized based on their IP infringement rates, with priority given to addressing issues in countries with high rates of infringement (Priority Foreign Country: PFC), i.e., countries on the Priority Watch List (PWL), and countries on the Watch List (WL).

Thailand was previously categorized as a country on the Priority Watch List from 2007 to 2017. However, on December 15, 2017, the USTR upgraded Thailand’s IP protection and enforcement status to the Watch List. Currently, Thailand remains on the Watch List along with 22 other countries. The USTR’s Notorious Markets Report for 2022 identified the MBK Center as the only market in Thailand with a high rate of IP infringement.

The USTR’s report acknowledges that Thailand has made progress in improving IP protection and enforcement. Efforts have been made to seize counterfeit and pirated goods, combat the sale of counterfeit goods online, and enhance cooperative measures among governmental agencies. Notable proceedings and plans by governmental agencies include:

  1. Amendment to the Copyright Act B.E. 2537 (1994) to strengthen copyright owners’ rights, allowing them to initiate takedowns or block access to copyright infringement contents on the internet. The amendment also extended the lifespan of photography protection and facilitated Thailand’s accession to the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT).
  2. The development of the Thai Customs IPR Recordation System (TCIRs), an online system where right holders can submit trademark and copyright information to customs officials for verification of authenticity in imported, exported, or transit goods.
  3. Cooperative measures among governmental authorities and organizations to combat the sale and advertisement of counterfeit goods online and online piracy. A Memorandum of Understanding (MOU) has been established between right holders and advertising associations to restrict support for websites that infringe on intellectual property.

However, the USTR report also highlights concerns and areas of improvement. The USTR recommends amending the Patent Act B.E. 2522 (1979) to streamline the patent registration process, reduce patent backlog and pendency, and prepare for accession to the Hague Agreement. Additionally, an amendment to the Copyright Act B.E. 2537 (1994) is suggested to address enforcement obstacles and enable Thailand’s accession to the WIPO Performances and Phonograms Treaty (WPPT).

The Department of Intellectual Property (DIP) is aware of the USTR’s concerns and is taking action to address them. The DIP is currently in the process of redrafting the Patent Act B.E. 2522 (1979) to provide additional protection for right holders, improve the registration process, and align with global standards for accession to the Hague Agreement. Similarly, the Copyright Act B.E. 2537 (1994) is undergoing legislative amendments for Thailand’s accession to the WPPT. Enforcement issues are being addressed through cooperative measures among 17 governmental authorities responsible for seizing and enforcing the law against IP infringers.

Despite ongoing efforts at the administrative, policy planning, and enforcement levels, intellectual property infringement remains a significant challenge in Thailand. The DIP is committed to resolving this issue and working towards removing Thailand from the Watch List countries.

Please note that the information provided is based on the USTR’s Special 301 Report 2023 and other relevant published sources.

Author: Panisa Suwanmatajarn, Managing Partner.

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Thailand – Plan to Accede to WIPO Performances and Phonograms Treaty  

Following being a member of the Regional Comprehensive Economic Partnership (RCEP), Thailand is planning to update the Copyright Act B.E. 2537 (1994) in respect of performing rights in preparation for acceding to WIPO Performances and Phonograms Treaty (WPPT).  

RCEP is a free trade agreement that involves 15 countries in the Asia-Pacific region, one of which is Thailand since 15 November 2020. RCEP includes a chapter on intellectual property which encompasses various aspects of intellectual property protection, such as trademarks, copyrights, patents, trade secrets, and geographical indications. As a party to RCEP, countries are expected to comply with minimum standards for intellectual property protection, based on international agreements such as the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and other relevant treaties like WPPT. It primarily deals with the protection of performances and phonograms, which are a subset of intellectual property. Currently, the current Copyright Act B.E. 2537 (1994) does not meet the minimum standards of WPPT. Thus, the Department of Intellectual Property, Ministry of Commerce is proposing the revision of the current Copyright Act B.E. 2537 (1994).  

black android smartphone on top of white book

What will be changed?  

Originally, performing rights under the current Copyright Act B.E. 2537 (1994) primarily followed the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations (Rome Convention). The definition of “Performers” under the Rome Convention differs from that of WPPT. Under WPPT, “performers” are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore. The latter part of the preceding definition will be imported to the Copyright Act B.E. 2537 (1994). The definitions of “sound recording,” “publicly available,” and “advertising” will also be changed to align with WPPT.  

Increase the performer’s rights to have exclusive rights over the recorded performance. The right to receive fair compensation for the use of sound recordings when such recordings have been uploaded on the Internet, regardless of whether it has a commercial purpose or not. Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.  

Impose fairer remuneration for performers and moral rights for the use of sound recordings in broadcasting or communicating to the public.  

Abolish the minimum penalty rate in the Copyright Act B.E. 2537 (1994) so that the court can exercise its discretion to punish offenders at an appropriate rate.  

The benefits of this revision are expected to enhance the performing rights and producers of sound recordings in accordance with international standards. Currently, the proposed revision is in an early stage. It needs to go through the final stage of the administrative level and then the parliament.

Author: Panisa Suwanmatajarn, Managing Partner.

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Meme and GIF: Whether It Is Protected under Copyright Law 

A Meme is a slightly modification of some pre-exiting work. It could be anything e.g. image, video clip, or GIFs, etc. It is widely used across the social media to spread the humor. Words are good for expressing thoughts, ideas, stories and etc. However, mood and humor are expressed better in moving pictures. Memes and GIFs can be shared easily in the cyber space. The efficiency of their expressiveness is the key to their popularities.

Memes and GIFs are not a new type of copyrighted work that needs a new definition. They are subject to both protection and infringement of copyright created by Memes and GIFs. Creating Memes and GIFs could potentially gain an ownership if they meet the requirements.

person holding white android smartphone

An author has to consider the factors below, if it wants its work to be qualified for copyright protection.

  1. Works must be originated by an author;
  2. The effort of author to create works is required;
  3. An author must use its skills to create such work; and
  4. An author must use its judgment when producing works.

Focusing on creating Memes and GIFs, derivative work comes into consideration since it seems that memes and GIFs are derivative work of somebody’s pre-existing work by using those material and creating into another separating ones and inserting a funny quote, so it reflects that memes and GIFs authors do not use much efforts. Besides, the author is also lack of originality since Memes and GIFs are not completely changed from the pre-existing work.

Under Section 27 of Copyright Act, it states that reproduction, adaptation or communication to the public of a copyrighted work shall be deemed an infringement of copyright. This means copying and sharing copyrighted Memes and GIFs could potentially be subject to an infringement. However, there is an exemption mentioned under Section 32 that one could use those copyrighted work if such use does not affect to a normal exploitation of the owner of copyright and does not unreasonably prejudice to the legitimate right/interest of the owner of copyright. In other words, the fair use doctrine is recognized in Thailand.

man in black crew neck t shirt covering his face with his hand

To determine whether fair use doctrine could be applicable to Memes and GIFs, the two main factors must be considered:

  1. The amount of substantiality of the portion used in relation to the copyrighted work as a whole; and
  2. The effect caused by the use to the potential market or value of the copyrighted work.

Author: Panisa Suwanmatajarn – Managing Partner, The Legal Co., Ltd.

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AI and Intellectual Property Protection

AI or Artificial Intelligence is an intelligent machine that could perform task and mimic some human ability which make a difficulty to future role of human. Currently, some AI could perform an artwork, but the following question is that if AI or non-human creature could generate artworks independently, will intellectual property law protect this non-human creativity.

high angle photo of robot

According to Berne Convention for the Protection of Literary and Artistic Works, there is no definition of the term “author”; however, it is known that in many counties including Thailand, the subject of the authorship needs to have skill labor and thus human ship is required. Importantly, artistic mind is a crucial part of the artwork which is an ability that AI or non-human creators cannot approach. For example, the starry night showing a dimness of night sky with a dark blue shade contrast with a yellow color interpreted the emotion turbulence of the artist called “Van Gogh”.

In United State, the protection under copyright law is not expanded to non-human creator. As a result, non-human author is unable to hold an ownership of the work. This statement was mentioned in Naruto, the monkey, selfies case. The case began with the accusation of PETA, the animal-right nonprofit organization, claimed that the photo shot by the monkey “Naruto” should not be owned by the defendant or the photographer. PETA claimed that the creativity should be upon humanity; thus, the organization requested that the defendant should pay for a royalty fee to the place where monkey lives. However, The US court disagreed and affirmatively ordered that animal was not capable to file a lawsuit since they were not legal persons under the copyright’s protection in the US. It could therefore imply from this decision that non-human creator could not hold the ownership of copyright. Only legal persons that the US copyright law recognize.

Interestingly, Australia court was the first country mentioning about the possibility of recognition of AI as an inventor. The judge had ruled that since the definition under Section 2C of the Interpretation Act 1901 does not include the term “inventor” as a person so AI could be an inventor. However, the higher court rejected this judgment and brought back to the decision that the copyright holder should be owned by a natural human.

man in black suit sitting on chair beside buildings

Under Thai legal system, the current Copyright Act defines the term “author” as a “person” who makes or creates any work which means that intellectual property law in Thai currently protects only human’s work. It is therefore reflected that there is currently no intellectual property protection over non-human inventor including AI.

Author: Panisa Suwanmatajarn – Managing Partner, The Legal Co., Ltd.

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Observations of the Extraordinary Committees Considering on Revision of the Copyright Act (No. ..) B.E. ….

On 1 February 2022, the Cabinet considered and approved the following resolutions:

  1. The Cabinet considered and approved observations of the Extraordinary Committees of the House of Representatives and the Senate on revision of the Copyright Act (No. ..) B.E. …. as proposed by the Secretariats of the House of Representatives and the Senate.
  2. The Office of the Council of State shall accept the observations of the Extraordinary Committees of the House of Representatives for consideration. If the Office of the Council of State deems it appropriate to make amendment on the ground for preparation of this revision of the Copyright Act (No. ..) B.E. …. , the Office of the Council of State shall send to the Secretariat of the Cabinet on such revised ground according to the observations of the Extraordinary Committees of the House of Representatives and the Senate for publishing in the Government’s Gazette.
  3. The Ministry of Commerce, as the main agency, is required to consider the observations of the Extraordinary Committees of the House of Representatives and the Senate together with the Office of the Court of Justice, Royal Thai Police, and relevant agencies and summarize the results of consideration and submit the same to the Secretariat of the Cabinet within 30 days for the Cabinet’s consideration.
businesspeople talking

The main points of these observations are as follows:

  • This revision of Copyright Act (No. ..) B.E. …. is essentially an amendment to the Copyright Act B.E. 2537 regarding the duration of copyright protection in photographic works by providing protection for photographic works throughout the author’s life and for 50 years from the death of the author in order to comply with the World Intellectual Property Organization’s Copyright Treaty as well as making amendment on provisions of the technology protection measures and  the limitation of liability of service providers to create a mechanism for cooperation between service providers and copyright owners to promote fair trade on the Internet. In addition, regarding the penalties, this revision of Copyright Act (No. ..) B.E. ….  increases penalties for offenses in providing, producing, selling or distributing services, products or devices causing ineffectiveness on technology protection measures in order to create prevention of an infringement of copyright works more effectively.
group of people in building structure
  • The Extraordinary Committees of the House of Representatives and the Senate consider that the ground for amendment of Copyright Act (No. ..) B.E. …. is too narrow since it does not cover the supervision of copyright works. The Extraordinary Committees of the House of Representatives and the Senate therefore deem it appropriate to amend the same to provide effective protection of copyright works and keep up with technological changes to be in line with consumer’s behaviors and current social situations. There are also observations about the development of copyright database system, encouraging the use of other intellectual properties in which the term of protection is going to expire for the benefit of Thailand, stipulating guidelines or practices regarding litigation of copyright infringement and considering amendment on the minimum penalty rate under the Copyright Act B.E. 2537 to make all provisions being in line to each other in the future. Last but not least,  to provide effective protection of copyright works and keeping up with technological changes, the Extraordinary Committees of the House of Representatives and the Senate considers making amendment to the provisions related to the protection of performers’ rights to suit the current situation as well as encouraging copyright owners to adopt technology protection measures that do not impede the use of assistive technology for persons with disabilities to access copyright works and creating knowledge and understanding of this revision of Copyright Act (No. ..) B.E. ….

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The Department of Intellectual Property proposed for amendment to the current Copyright Act in order to mainly solve the issue of copyright infringement on the internet and to meet the international standards especially the WIPO Copyright Treaty (WCO) in which Thailand is required to enter into being a member.

Such amendment to the current Copyright Act has recently been considered by the Legal, Justice and Police Committee (“Committee”) of the Upper House Level, key’s consideration of the Committee for being used during the meeting of the Upper House Level are as follows:

engineer designing medical equipment
  1. The takedown notice shall be arranged in writing and shall include as least details as follows:
    • The copyright owner’s name and contactable address, telephone number or email address
    • The copyrighted work claiming as being infringed or examples of them on the service provider’s website
    • Sufficient computer data claiming that it has been created by infringer and data’s location or location where such computer data has been found so that the service provider is able to remove such infringing computer data from its system or suppress accessing into such computer data except as specified therein.
    • The content showing warrants that such claim is true.
    • The copyright owner’s signature or electronic signature.
  2. The Department of Intellectual Property should consider having those conditions of the take-down notice specified in the ancillary law for easy revision other than having the same specified in the Copyright Act itself.
  3. The term in regard to the computer data’s location or location where such data has been found is still not clear. It should be revised to be a source for dissemination of infringing data and also the term in regard to notice should be indicated to be as the notice in an electronic form or electronic written document.
  4. Takedown measure shall not cause-effect to other computer data which is not related to such infringing data and if that causes an effect, the protection and remedy measure for such other computer data shall be considered and provided.
  5. The copyright issue is an issue among the private sectors. It should be considered a compoundable offense.
  6. As copyright work can be protected without any registration. Once the protection period has lapsed, the means to allow the public knowing about that should be considered.