Tag: Technology

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EU AI Act: Implications for Thailand and its Influence on Thai AI Legal Instruments

The European Union’s pioneering approach to regulating Artificial Intelligence (AI) has set a new global standard, with implications reaching far beyond its borders. On 21 May 2024, the European Council formally adopted the EU AI Act, scheduled for full enforcement by 2 August 2026. This landmark legislation aims to mitigate potential harm from AI usage while fostering innovation.

The EU AI Act employs a risk-based approach, categorizing AI systems into four levels:

  1. Unacceptable Risk: Prohibited AI systems that pose threats to human rights, such as social scoring systems and real-time face recognition systems.
  2. High-Risk: AI systems are required to meet specific requirements and undergo conformity assessments, including biometric identification and critical infrastructure systems.
  3. Limited-Risk: AI systems that must fulfill obligations before market entry, such as deepfakes and chatbots.
  4. Minimal-Risk: AI systems that must adhere to a code of conduct, including speech recognition and spam filtering systems.

The EU AI Act also introduces AI Regulatory Sandboxes, monitored by National Competent Authorities, to ensure compliance before market deployment.

Impact on Thailand

While Thailand is not an EU member, the EU AI Act’s influence extends globally, presenting both challenges and opportunities:

  1. Legal Framework Development: The Act provides a blueprint for Thailand to develop robust AI laws and regulations.
  2. Business Performance Enhancement: Thai AI-related businesses may need to elevate their standards to operate in the EU market, indirectly improving the domestic AI industry.
  3. Access to Advanced AI Systems: Thailand may benefit from the influx of high-standard AI systems developed under EU regulations.
elderly man thinking while looking at a chessboard

Thai AI Legal Instruments in Development

Influenced by the EU AI Act, Thailand is currently drafting three main legal instruments:

  1. The Draft Act on the Promotion and Support of AI Innovations in Thailand: This act establishes general rules, requirements, and authorities for AI control. While influenced by the EU AI Act, it relies more on subordinate laws for specific requirements. Uniquely, it includes provisions for reimbursing damage caused by AI use when no responsible party can be identified.
  2. The Draft Royal Decree on Business Operations that Use Artificial Intelligent Systems: This decree adopts the EU’s risk-based approach and requirements for High-Risk AI. However, it defers detailed explanations to sub-regulations. It also includes administrative and criminal penalties for non-compliance.
  3. The Draft Notification of Electronic Transactions Development Agency Re: AI Sandbox: This notification focuses on AI Sandboxes, crucial for pre-market implementation testing. Unlike the EU’s mandatory approach, Thailand’s AI Sandbox is voluntary.

Key Differences and Adaptations

While heavily influenced by the EU AI Act, Thailand’s approach shows some notable differences:

  1. Regulatory Depth: Thai drafts often defer detailed requirements to subordinate laws, whereas the EU AI Act provides comprehensive explanations within the main legislation.
  2. Enforcement Approach: Thailand includes specific provisions for penalties and damage reimbursement, which are not as explicitly outlined in the EU AI Act.
  3. Sandbox Implementation: Thailand opts for a voluntary AI Sandbox approach, contrasting with the EU’s mandatory system.

Conclusion

The EU AI Act marks a significant milestone in AI regulation, influencing global approaches including Thailand. While Thailand is not obligated to follow EU standards, the similarities in their developing legal instruments highlight the EU AI Act’s far-reaching impact. As Thailand continues to refine its AI legal framework, it balances adopting international best practices with tailoring regulations to its specific needs and context.

As the global AI landscape evolves, Thailand’s proactive approach in developing comprehensive AI regulations is to navigate the challenges and opportunities presented by this transformative technology.

black and white photo of a transparent mannequin

Key Takeaways

  • EU has passed the first AI Act which will be fully enforced by 2 August 2026.
  • The EU AI Act uses risk-based approaches to prevent the possible harm to human.
  • The EU AI Act does affect Thailand in the field of commercialization and legalization.
  • Thailand does not have the burden to follow EU AI Act. However, Thailand heavily influenced by EU AI Act in the process of drafting.

Author: Panisa Suwanmatajarn, Managing Partner.

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Thai Perspectives on AI Governance: Navigating Unique Realities Amidst Global Trends

With the recent successful approval of the AI Act in the European Parliament, policymakers worldwide are gearing up to develop comprehensive governance frameworks to support AI development and protect its users. Thailand, with its overarching national AI roadmap, is also developing a legal framework similar to the EU AI Act. However, it is crucial to note that Thailand’s unique context may not align perfectly with the EU’s approach. Diligently monitoring the effects and consequences of EU AI Act implementation, adapting to Thailand’s unique context, and leveraging Thailand’s capabilities to shape the country’s AI governance framework is of paramount importance.

On 9 February 2024, the AI Governance Clinic (AIGC) by the Electronic Transaction Development Agency (ETDA) conducted a webinar whereby Thai experts on AI gathered to discuss the direction of AI governance in Thailand. The AIGC, a leading authority in AI governance, plays a pivotal role in shaping the future of AI in Thailand. Unarguably, the experts point out that AI markets in Thailand are growing at an exponential rate; the adoption of AI in day-to-day business operations, as well as the number of AI developer startups, require effective governance to ensure the promotion of Thai AI to the international level and protection of users in the local level. Nonetheless, Thailand now lacks a clear governance direction, whether strong comprehensive AI regulations or self-regulation would be required and sufficient in Thailand’s context. 

In the interview on Policymakers set to prepare more AI rules with Bangkok Post given by the executive director of the ETDA, he mentioned that “Thai regulators view that Thailand is not in a rush to issue and impose strong and comprehensive AI regulations”. He also mentioned that “ETDA has prepared a draft law on the application of AI with good governance; such draft law will also govern the standardization of contracts between service providers and users of AI products or services and that the standardization of contracts would prevent problems arising from the users not knowing or not understanding the complex systems of AI”.  

clear mannequin on dark blue background

Without a solid and specific regulation, the ETDA prioritizes AI literacy, underscoring the importance of empowering users with the knowledge to discern and mitigate the risks associated with AI technologies, particularly concerning the proliferation of AI Deepfakes. The threat of AI Deepfakes, a type of Generative AI that can create synthetic media, whether still or moving images, voices, and sounds, creating an indistinguishable virtual identity of an individual, is a pressing concern. AI Deepfakes are often used in disinformation and hallucinating facts; the victims falling for AI Deepfakes, whether monetary damaged or not, are said to have been “AI Hallucinated.” While generative AI brings as much creation into modern society as possible, limits should be imposed. With this intricacy of balancing between the right amount of regulations, and the freedom to foster and promote new AI innovation, regulating AI requires the regulator to be very delicate in regulation drafting.

As Thailand charts its course forward in AI governance, it has a unique opportunity to not just follow global trends, but to lead. By leveraging its unique strengths and capabilities, Thailand can co-create a governance framework that not only addresses emerging challenges but also fosters innovation and inclusivity. By fostering collaboration between stakeholders, monitoring the impact of regulatory interventions, and embracing adaptability, Thailand can carve a distinctive path toward AI governance that reflects its values, aspirations, and economical and societal needs.

Author: Panisa Suwanmatajarn, Managing Partner.

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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.