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.
An author has to consider the factors below, if it wants its work to be qualified for copyright protection.
Works must be originated by an author;
The effort of author to create works is required;
An author must use its skills to create such work; and
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.
To determine whether fair use doctrine could be applicable to Memes and GIFs, the two main factors must be considered:
The amount of substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect caused by the use to the potential market or value of the copyrighted work.
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.
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.
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.
Business Incorporation and Relevant Registrations in Thailand
Setting up a company in Thailand requires at least 3 or more individuals to subscribe their shares at the incorporation stage. Then, such subscribers shall conduct a statutory meeting for a company establishment to appoint the director(s) of the company and hand over the business to the director(s). The director(s) shall call for shares subscription either in kind or in cash and register for incorporation within 3 months from the statutory meeting.
The company’s director(s) can be both Thai and foreigner. This does not affect the ownership of shares in the company or types of the company whether it is a Thai company or a foreign company under Thai law. However, in the event that the director(s) is a foreigner and receive salary from the company, this shall be considered as an employee who is required to apply for a work permit in order to work in Thailand legally.
Once the company has already been established and if the company has an employee, social security registration is required. In addition, if the company has its income more than 1,800,000 baht per year, the company is required to register for value added tax (VAT) number.
Last but not least, other registrations or procedures may be required for any other specific types of business. For example, specific licenses are required for operating the restaurant business, securities business, tourism business, etc. The business owners need to seek consultation and check the relevant laws whether the business requires any other specific registrations or procedures.
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:
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.
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.
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.
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.
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. ….
Currently, there are plenty of internet users causing copyright infringement works substantially. The current Copyright Act does not cover the advance of today’s technology. Therefore, the Amendment to Copyright Act (No. 5) B.E. 2565 (“Act”) was proposed by the Ministry of Commerce and will be officially enforced on 23 August 2022. The reasons for enactment of this Act are for complying with the World Intellectual Property Organization’s Copyright Treaty (WIPO Copyright Treaty) in which Thailand became a contracting party, strengthen efficiency in protecting copyright works while changing in technology as well as revising the provisions on protection of technological measures. This Act also improves the provisions on limitation of liability of the service providers for effective law enforcement along with creating cooperation between service providers and copyright owners in solving piracy problems on the internet.
This Act has added definition of the term “Service Provider” which has a broader meaning than the current Copyright Act and also added the definition of the term “Service User”. The Act has also amended the definition of “Technology Protection Measure” to include the performer’s rights and recording of performance mediums. Moreover, this Act has intended to improve the provisions on limitation of liability for several types of service providers which are service providers for mediums for transmitting computer data or allowing the communication to be communicated by other means through the computer system, temporary computer storage service providers, computer depository service providers, and service providers for the computer data search. It has also amended the way to conduct taking down and notice against the infringement works. It is hoped that this Act will help in balancing among the rights of copyright holders, liabilities of service providers and using of copyright works under fair use principal.
Ministerial Regulation on Exemption of Fine under the Law on Trademark and Ministerial Regulation on Exemption of Fine under the law on Patent
On 24 January 2022, the Cabinet has approved in principle the Draft Ministerial Regulation on Exemption of Fine under the Law on Trademark B.E. …. (“Ministerial Regulation on Trademark”) and the Draft Ministerial Regulation on Exemption of Fine under the Law on Patent B.E. …. (“Ministerial Regulation on Patent”) as proposed by the Ministry of Commerce in order to exempt a fine charged at the rate of 20% on the renewal of trademark registration, renewal of service mark, renewal of certificate mark, and renewal of collective mark which the owner of such marks shall pay for such fine in the event that the registration of such marks is not renewed within the period stipulated by the law as well as exemption a fine charged at the rate of 30% of the annual fee as the owner of patent or a petty patent fails to pay the annual fee within the period stipulated by law.
The exemption of both fines shall be enforced on the day following the date of Government Gazette’s announcement until 30 September 2022 (B.E. 2565) in order to reduce the burden of trademark owners and patent owners, alleviate the economic impact, and avoid contacting government agencies to ask for permission from government agencies which will relieve the impact occurred to the people from the pandemic of COVID-19. The main points of these Ministerial Regulations are as follows:
Ministerial Regulation on Trademark – This is an exemption of the fine charged at the rate of 20% on the renewal of trademark registration, renewal of service mark, renewal of certificate mark, and renewal of collective mark which the owner of such marks shall pay for such fine in the event that the registration of such marks is not renewed within the period of time according to the Trademark Act B.E. 2534 as amended by the Trademark Act (No. 3) B.E. 2016
Ministerial Regulation on Patents – This is an exemption of the fine charged at the rate of 30% of the annual fee to the owner of a patent or a petty patent who fails to pay the annual fee according to the Patent Act B.E. 2522 as amended by the Patent Act (No. 3) B.E. 2542
Nevertheless, the aforementioned draft Ministerial Regulation for Trademark and Ministerial Regulation for Patent have no effect on extending the duration of application for renewal. Besides, on the topic of the payment of renewal fees, trademark owner together with patent or petty patent owner is still required to submit an application for renewal and pay the renewal fee within the period stipulated by each of applicable law.
On 4 January 2022, The Cabinet has approved in principle the Draft Announcement of the Ministry of Commerce on the Stipulation of Trademark and Copyright Infringement Goods are Prohibited to be Exported, Imported, and Transited Through the Kingdom B.E. .… (“the Draft Announcement of Trademark and Copyright Infringement Goods”).
The purpose of this Announcement of Trademark and Copyright Infringement Goods is to improve the mechanisms to prohibit exports, imports, as well as transits through the kingdom of goods infringing trademark and copyright in accordance with the current situation which seeks to prevent intellectual property infringement at border crossings more effectively. Also, this is consistent with relevant current situations, laws, and international obligations, i.e. the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the Reginal Comprehensive Economic Partnership (RCEP). The main points of this Announcement of Trademark and Copyright Infringement Goods are as follows:
Trademark and copyright infringement goods shall be prohibited from exporting, importing, and transiting through the kingdom, except in the case of carry-on items that are not unreasonably large amount and not for the purpose of commercial use.
The owner of a trademark or copyright is able to inform information on its trademark or copyright to a customs officer in accordance with the rules, procedure, and conditions prescribed by the Customs Department for the avail of inspection of goods which is under reasonable consideration that it infringes trademark or copyright of such owner.
Therefore, the Customs Department is able to take steps to improve the related procedures to comply with relevant international agreements as well as facilitate the operators who act in good faith to be able to pass customs clearance quickly.
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