Compliance with Takedown Notice Practices in Thailand

The takedown notice mechanism is an important tool for intellectual property right holders to combat the dissemination of illegal or infringing contents on the internet. In Thailand, there are specific provisions under the Computer-Related Crime Act B.E. 2550 (2007) (“CCA”) and the Copyright Act (No. 5) B.E. 2565 (2022) (“CA”) that govern the takedown notice processes.

Takedown Notice under the CCA:

Under the CCA, a competent official appointed by the Minister of the Ministry of Digital Economy and Society (“MDES”) has the authority to issue takedown notice for illegal computer data. The competent official, with the approval of the MDES, can file a petition with the court, accompanied by evidence, to request the court to block or delete the computer data. This applies to computer data that constitutes an offense under the CCA, data that affects the security of Thailand, or illegal contents.

Internet service providers (ISPs) are required to comply with takedown notice from competent officials if the notice is in the prescribed form under the CCA’s regulations. ISPs must fulfill the takedown notice within the timeframe specified by the court, not exceeding 15 days from the court’s order, unless there is a reasonable necessity for a delay.

Takedown Notice under the CA:

The Copyright Act (No. 5) B.E. 2565 (2022) provides copyright owners with the ability to initiate takedown notices for copyright infringement contents in the computer systems of various types of ISPs, including intermediary ISPs (Mere Conduit), caching ISPs, hosting ISPs, and search engine ISPs. Copyright owners can notify these ISPs to remove the claimed infringing contents, and the ISPs must promptly remove such contents. The ISP must also inform the alleged infringing user to file a counter-notice, which will be forwarded to the copyright owners. If the copyright owners fail to file a lawsuit against the alleged user within 30 days of receiving the counter-notice, the ISPs must restore the disputed information or allow access to the contents.

Takedown Notice for Other Types of Intellectual Properties:

Unlike the CA, other intellectual property-related laws, such as those governing trademarks and patents, do not explicitly provide provisions for takedown notices. In practice, intellectual property rights holders need to engage the Intellectual Property Rights Enforcement Office, which relies on the CCA to address illegal contents related to these types of intellectual property.

Despite the existence of these mechanisms, there is currently no comprehensive guideline issued by the government to assist intellectual property right holders in protecting their interests. Additionally, it remains unclear how Thai laws will be enforced against ISPs that do not comply with requests from rights holders, as the takedown of infringing contents currently relies on the cooperative basis of ISPs. However, the Department of Intellectual Property is working on establishing better mechanisms to enforce takedown notices for intellectual property infringing contents, including cooperation between governmental authorities and potential amendments to existing laws to address evolving technologies.

Author: Panisa Suwanmatajarn, Managing Partner.

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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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Streamlining Procedures on CIPITC Court Cases

Due to the rapid changes in technologies and the necessity for the legal justice system to keep up with the continuous changes, the Central Intellectual Property and International Trade Court (“CIPITC”) issued an updated version of the old Rules on Intellectual Property and International Trade Cases B.E. 2540 (1997) by merging the announcements and/or regulations into an integral part of these provisions.   Essentially, the Rules on Intellectual Property and International Trade Cases B.E. 2566 (2023) (“Rules”) amended the way in which the CIPITC usually proceeds, or how evidence hearing is usually conducted. The Rules now make it clear that the parties can file a complaint, motion, answer, or other pleadings or submit related documents to the court via electronic means. The court may proceed with the hearing wholly or partially by electronic means.   The following is sample of the changes that affect the CIPITC proceedings making them convenient to the parties in dispute.  

Amendment to the Procedures  

Previously, the CIPITC has no authority to suggest alternative hearing methods. It was largely dependent on an agreement by the parties in dispute. The new Rules allow the CIPITC to propose alternative hearing methods, including methods of communication, submission, delivery, and receiving of testimony, which will smooth out advancing the trial. The delivery of documents, summons notice, copies of the complaint, or other court orders, whether to the parties or any third person may be done via electronic mail. For e-mail or other electronic means, the CIPITC would have deemed that such communications or copies of documents are valid once 15 days have passed from the date that such documents and/or information have been delivered.   In a case where the defendant’s domicile is not in the Kingdom of Thailand, the delivery of summon notice and/or copy of the complaint shall be of the same method as the defendant has used in business operation or communication with the party involved in the dispute or has declared it to a government agency, however, the CIPITC would regard such summon notice and/or copy of complaint valid after 30 days passed from the date of such documents and/or information have been delivered. This email address should be used in the defendant’s business operations or has been used in communication with the other party regarding the dispute.   Another important development under the Rules is in regard to the evidence for hearing proceedings. Should any parties wish to refer to electronic evidence, such evidence must be recorded in the records of witness testimony. The recording of witness testimony in electronic form can now be used as is, without having to be transcribed into written testimony as it was done in the past. Witness statements in the past were written in the wording summarizing it from verbal statements given by witnesses.  

Acceptance of Foreign Language Documents 

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The current policy requires most documents in a foreign language to be translated into Thai, but there are exceptions. If the parties agree and the documents are not crucial to the case and are in English, the CIPITC may allow submission without translation. However, the new Rules expand upon this allowance. CIPICT can now permit the submission of documents in any foreign language without Thai translation or with partial translation if both parties agree and the untranslated portions are not crucial. Additionally, the CIPITC can directly examine international regulations, treaties, or guidelines in a foreign language without solely relying on submitted translations. The new Rules enable the consideration of international treaties if Thailand is a contracting party, even without Thai translations. However, it is less clear whether the CIPITC can consider treaties not being raised by the parties, in accordance with international principles and practices.  

Foreign Witness may Submit Written Statement Instead

If a party or all parties have requested and the CIPITC deems it appropriate for the benefit of justice, the CIPITC may allow the submission of the testimony of a witness who resides outside the country to be presented to the court. The witness does not have to appear before the court as a witness. However, the testimony must follow the guidelines specified or the law of the country where the testimony is made.   Obviously, the new Rules will give CIPICT more flexibility and transparency in conducting proceedings, resulting in streamlined court procedures and decreased time and expenses for the parties involved.  

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).  

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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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The USTR keeps Thailand on the Watch list, yet appreciates Thailand’s progress

On April 26th, 2023, the Director General of Thailand’s Department of Intellectual Property (“DIP”) revealed that the United States Trade Representative (“USTR”) announced the annual status review of Intellectual Property (“IP”) protection of the United States trading partners or the Special 301 Report published under Section 301 of the Trade Act of 1974. Thailand is still on the Watch List (“WL”) this year, along with 21 other nations.

USTR has recognized Thailand’s progress in IP protection and enforcement, particularly the amendment of the Copyright Act to include a notice and takedown procedure, allowing the copyright owner to inform the platform and have the counterfeit items removed. Thailand also updates the Technological Protection Measure (“TPM”) to extend the expiration date of photoprotection.

Furthermore, Thailand has entered into bilateral cooperation with the World Intellectual Property Organization Copyright Treaty (“WCT”) to preserve licenses in the digital era. USTR has also applauded Thai intra-agency efforts in IP protection and enforcement, such as the Thai Customs IPR Recordation System (“TCIRs”) and the signing of memorandums of understanding (MOUs) with e-commerce platforms to report online counterfeit goods.

birds eye view photo of freight containers

Apart from DIP’s progressive operations such as Smart DIP, Fast Track System for Trademark Registration, and so on, DIP also contributes to ASEAN’s protection and enforcement against IP infringement by nominating themselves to be the president of the ASEAN Network of Intellectual Property Enforcement Experts (ANIEE). The objective of being president is to drive economic growth through IP by establishing appropriate standards between Thailand and trading partners and protecting Thai entrepreneurs’ IP, to make ASEAN aware of the importance of IP protection and enforcement so that Thai products can be properly and timely protected, to provide opportunities and trade fairness under modern technology, as well as to improve ASEAN’s general IP image and ensure that Thai products exported to ASEAN will be protected and capable of competing without facing IP infringement.  Thailand has been promoting experiences, knowledge, and success paths to the ASEAN region such as by associating with the ASEAN e-Commerce platform and creating the Protection and Enforcement against IP Infringement handbook and increasing the operational capacity of law enforcement agencies.

However, the USTR remains concerned with unauthorized film recordings, online counterfeit and pirated goods, impersonation royalty collection rights, and delays of criminal and civil proceedings, causing Thai to stay on the WL. To solve these concerns, Thailand is in the process of developing an IP Work plan with the US to shift out of WL. Thailand has proposed the idea to the United States, and the current procedure is for the United States to examine it. DIP will work as promptly as possible to bring Thailand out of the WL of the USTR annual status review in the future.

Author: Panisa Suwanmatajarn, Managing Partner.

Digital Devices to Be Used to Locate and Track the Whereabouts of Goods under the Authorities of the Customs Department

Digital devices can be used to transmit information on the whereabouts of shipments of goods under the control of the Customs Department. GPS technology, for example, can be used to accurately track the shipment’s position in real-time, allowing for precise updates that can be monitored from a remote location. This technology provides customs officials with more efficient tracking capabilities and can reduce the physical time and labor associated with tracking shipments. Furthermore, digital devices can be used to manage customs paperwork and store valuable data that can be accessed for future reference. This enables customs officials to quickly process documents and identify discrepancies that could delay shipment clearance. Several countries are using blockchain technology. For example, the United Arab Emirates is using blockchain to track international shipments and China has started using blockchain-powered technology.

As for Thailand, for the first time, the Ministry of Finance has recently issued a ministerial regulation regarding controlling the transportation of goods held in customs custody which will affect cross-border transportation, transportation to the bonded warehouse or duty-free zone, transportation of goods between ports and depots, multimodal transportation and other types of transportation as prescribed by the Director of Customs Department.

The control of this ministerial regulation was divided into two types, namely controlling the transportation of goods with a specific device such as GPS and controlling the transportation of goods with digital technology such as blockchain, which can be explained below.

Controlling the transportation of goods with a specific device is about using equipment indicated on the package or cargo or using other equipment which may be different according to the container or vehicle of transportation.  Meanwhile, controlling the transportation of goods with digital technology is about using technology equipment to control, follow and verify the transportation of goods in customs custody. During transporting of goods, a customer has a right to access the information in order to track the status of transportation.

For using these services, a customer such as an importer needs to declare the intention of using this service and pay a service fee before customs clearance. Furthermore, this ministerial regulation was issued to control and monitor the transportation of goods in customs custody and also prevent avoidance of payment by modern technology.

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

Thailand – Geographical Indication

Geographical Indication (“GI”) is a mark created for the certifying origin, quality, and reputation of products from specific local areas of each locality. 

In Thailand, the Department of Intellectual Property is responsible for registration and certification of GI which has promulgated the Protection of Geographical Indications Act of B.E. 2546 (2003) (“GI Act”) to complied with Thailand’s obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The key points of the GI Act of Thailand are as follows:

1. GI must not be a common name of the goods and must not be contrary to public order.

2. Persons recognized by law and eligible to apply for registration and certification of their GI are: (1) government agencies, state agencies, state enterprises, local government organizations or other state organizations being juristic persons (2) natural persons, groups of persons or juristic persons operating business and trade and (3) groups of consumers or consumer organizations of GI products. In the case that applicants are not Thai, such applicants must have nationalities of countries being members of international agreement/convention related to GI that Thailand is a member with or have domiciles or real places of business in Thailand.

women in sitting on floor rug

3. Foreign GI can apply for registration and certification under the GI Act provided that such foreign GI has been registered and certified in its country and been used until the date of applying for Thai GI.

Currently, Thai GI (i.e., Doi Tung Coffee, Durian Prachin, Lamphun Barcode Thai Silk, Pakpanang Tabtimsiam Pomelo, Thung Kula Rong-Hai Hom Mali Rice, Khao Yai Wine etc.) have been registered and certified in several jurisdictions including European Union, Republic of China, Japan, Vietnam, Cambodia, Indonesia, Malaysia, and India. The Department of Intellectual Property has a further plan to register more Thai GI in several countries and also to promote those in the global market. 

Author: Panisa Suwanmatajarn, Managing Partner

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Accession to the Hague Agreement and Amendment to the Patent Act

Following the commitment with the ASEAN Intellectual Property Right Action Plan 2016-2025, the Cabinet has recently approved Thailand’s accession to the Geneva Act (1999) of the Hague Agreement Concerning the International Registration of Industrial Designs (the “Hague Agreement”), which allows applicants to register an industrial design by filing a single application to receive protection in multiple countries that are contracting parties.

In addition, in order to facilitate the accession, the Cabinet has approved the proposed draft amendment of the Patent Act (no. ..) B.E. …. (the “Amended Act”), which will improve the efficiency of patent registration and examination processes, as well as design patent application system, to be consistent with international standards (i.e. Hague Agreement, TRIPs Agreement, Convention on Biological Diversity, and Nagoya Protocol on Access and Benefit Sharing).

people sitting on gang chairs

The most notable changes are as follows:

  1. To comply with the Hague Agreement, Chapter 3/1 will be added to the Amended Act to specify the application filing system for international design patent protection (i.e. direct filing with the World Intellectual Property Organization (“WIPO”) and indirect filing through the Department of Intellectual Property (“DIP”, and the qualifications of the applicants. Furthermore, the protection term for design patent is extended from 10 to maximum 15 years ( a 5-year initial term with renewable for a period of 5 years twice). 
  2. To be consistent with Article 31 bis of the TRIPs Agreement, the Amended Act includes grounds for issuing compulsory licensing particularly for an export of patented pharmaceutical to least-developed countries or to World Trade Organization (“WTO”) member states with restricted production capacity. Moreover, to comply with Article 27 of the TRIPs agreement, the list of non-patentable subject matters is expanded to include “surgical methods” and any inventions for commercial exploitation contrary to public order, morality, health, and public welfare, or causing serious environmental damage.
  3. In accordance with Nagoya Protocol, provisions regarding genetic resources (“GRs”) and traditional knowledge (“TK”) will be added, requiring applicants to declare the source of origins and submit documents demonstrating access and benefit-sharing of such inventions together with a patent application.
  4. The definition of “design” is amended to include “partial designs” that is visible to the naked eye, offering the extended protection coverage.
  5. Some changes on the patent examination processes are introduced to improve efficiency and speed of the registration system. For example, the opposition of patent applications requested by any interested person is changed from after the first publication to be after the second publication and the period for requesting a substantive examination of patent applications is reduced from 5 years from the publication date to 3 years from the filling date in Thailand.
  6. Under the Amended Act, a patent license agreement is no longer required to be registered with the DIP to be valid, as it will be based on a recordation system.
  7. In compliance with the Patent Cooperation Treaty (“PCT”), Chapter 2/1 regarding international patent applications will be added to specify rules relating to patent registration, for example, qualifications of applicants, priority claim and filling process.
  8. There are some changes relating to official fees, for instance, the fees for filing a patent application and a design patent application are increased from THB 1,000 to THB 3,500 and THB 3,000, respectively.

Overall, the Amended Act offers a promising improvement to Thailand’s patent and industrial design regulations and ensures consistency with international standards, including the Hague Agreement. On the next stages which will take at least a year, the draft will be submitted to the Council of State and then the National Assembly of Thailand to obtain approval from the House of Representatives accordingly.

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.

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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.
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  • 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.