PTC FORUM: Online Journal of the Patent, Trademark and Copyright Research Foundation
THAILAND / COPYRIGHT / INTERNET
Does Thai Law provide adequate protection for copyright infringement on the Internet?
Saravuth Pitiyasak
European Intellectual Property Law Review, Vol 25 No 1, January 2003
Although this article is concerned mainly with copyright law in Thailand, it
has a wider interest in that it not only refers to a number of aspects of copyright
protection relevant to all countries in which the Internet is extensively used,
but also calls in aid precedents from a number of jurisdictions, including the
laws of England, the USA, Australia, Hong Kong and elsewhere. The author begins
by rehearsing the four conditions required by Thai law for copyright protection:
that the work must be in one of the specified categories; that it must be original;
that it must be expressed (not, as in England, fixed in a material form); and
that it must be produced by a qualified person in a certain country. He goes
on to consider the application of the law to computer programs; texts of documents
on a website; graphics on a website; online music; moving images and series
of images; databases; and web broadcasts. In many of these cases, protection
under Thai law is uncertain or incomplete. As to specific forms of infringement
of copyright, the author considers browsing (whether this does or should constitute
a form of copying); caching (that is, when the browser keeps in the RAM and
hard disk of the user's computer copies of the texts and images of visited web
pages to help revisiting them); mirroring (when one server makes complete copies
of files of another server and places them online); hyperlinking (to the home
page of another website - not, as a rule, a problem from a copyright point of
view); deep linking (to an internal web page of another web site, which is "much
more controversial") framing (when one web site brings content from another
web site into a window appearing on the original site, a practice giving rise
to some inconclusive litigation in the United States); and trading or exchanging
MP3 format music files (this leads to a discussion of the Napster and "Napster
successor" cases in the USA and to the author's view that, since concepts
of contributory and vicarious liability under US copyright law, though recognized
in the Thai law of tort, are not found in the Thai copyright law, Napster successors
would escape liability for infringement. The author comments briefly on copyright
infringement defences. He refers to express and implied licences but observes
that the latter are not explicitly recognized under Thai law. He speaks of "fair
dealing" under English law and the corresponding provisions of Article
13 of TRIPs and points out that Thai law is broadly in line with them. Thai
law does not, however, specify the meaning of a "significant part"
of a working the context of a defence that there has not been reproduction of
the work in question, in whole or in part. The author concludes with some proposals
for the amendment of Thai law, largely along the lines of European Community
directives in this field, but also for the legalizing of hyperlinks and deep
links, "since they can do more good to the public or Internet users tha
harm to copyright owners"; and for recognition of implied licences in the
case of normal viewing of works on the Internet. He strongly urges the establishment
of a Thai Intellectual Property Department to monitor international developments.
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