Tag: Technology

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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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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 

person wearing silver ring holding white book page

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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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.