Thailand Law Journal 2010 Spring Issue 1 Volume 13

Here we come at the crucial point of consistency of Thai folk moral outlook with the idea of intellectual property rights. It is clear from the principles articulated in Thai folktales that the nature of crime lies in significant harm to one’s neighbour. The problem with the copyright enforcement in Thailand as anywhere else is that a person who commits a copyright violation does not stand in actual proximity to his victim. The victims, such as in this case, are big companies who possess enormous wealth and influence, and who are not directly related to the offender. From the perspective of the offender, Thai state undertook the function to protect the profits of the international corporations disregarding his own economic needs. He will unlikely feel any moral guilt, and the only way to keep him from re-offending is the fear of punishment. This idea is clearly realized by Thai courts as well as by those who composed TRIPS Agreement. This is exactly the point where Thai official law comes into conflict with Thai folk moral principles. The consequences of this conflict are enormous. Thai criminal law loses its moral foundation becoming a mere instrument of terror and partiality. The whole integrity of law is affected.

Sony case²²

This is rather a controversial case in relation to how sentence was meted out to the offender. The official report on this case found on the website of the Supreme Court (accessed on 25.01.2010) contains omissions at a very important part of the decision caused likely by imperfect scanning technology. The discussion below is based on a reconstruction of judicial reasoning which readers must receive with caution. The arguments found in the report are presented in such a way that made an experienced Thai law lecturer, consulted by the author because of his deep knowledge of information technology issues, very much perplexed.

In this case, the defendant was caught in the possession of a very big number of computer disks, over 94.000, with the games illegally copied from Sony PlayStation by means of reproducing an integral program of the console in such a way that it would allow a mass production of computer disks containing copyrighted materials. It was also asserted that the defendant was guilty of illegal trade in copyright materials, although no facts were disclosed in the report in relation to trade itself. Nevertheless, the amount of discs seized can be a sufficient indication of the commercial intent. The defendant confessed the guilt.

The court of first instance sentenced him to 1 year of imprisonment for producing an illegal copy of the program of PlayStation which allowed him to make a mass production of computer disks with the games, 2 years for actually making the computer disks, and 1 year for being involved in illegal trade. Finally, he was fined for 10.000 baht for illegally using materials according to Tape and Television Equipment Act 1987. Such calculation of sentence was done on the basis of Section 91 of Thai Penal Code which states the following: “If it appears that any offender has committed several distinct and different offences, the Court shall inflict upon such offender the punishment prescribed for each offence.” Considering the fact of confession, the court reduced the sanction by half. The defendant appealed asking for further reduction of sentence.

The Supreme Court hearing the appeal agreed with the court of first instance that the offence was serious considering the amount of illegal copies as well as the significance of the offence itself for the copyright work. The judges in both courts held that the fact of reproduction of the program as well as the mass production of disks would lead to further violation of copyright on the large scale when being sold or otherwise distributed to the public. However, the Supreme Court disagreed with the court of first instance for charging the defendant under 3 separate offences under the Copyright Act: making illegal reproduction of the integral part of the console with the purpose of producing computer disks, illegally producing computer disks containing copyrighted materials, and finally selling them. The Supreme Court found that the first 2 offences must be treated as a single offence. Therefore the court reduced the sentence not on the ground of presence of any mitigating circumstance, but on the technical interpretation of how many offences were committed. Neither Thai Penal Code nor Thai Copyright Act contains a clear guidance in the way of delineating various offences when infringing someone’s copyright. The Sony case is exceptional that the defendant was charged under many legal provisions as violating Sections 27, 30, 31, 69(2), 70(2) of Copyright Act 1994, Sections 6 and 34 of Magnetic Tape and Television Equipment Act 1987. The reasons why the courts disagreed on the issue of delineating the offences deserves a closer examination. The judges of the court of first instance, who found the defendant guilty in 3 offences, and the Supreme Court who found him guilty only in 2, disagreed on the interpretation of the following provisions:

“Section 27. Any of the following acts against a copyright work under this Act performed without permission in accordance with Section 15(5) shall be deemed an infringement of copyright: (1) reproduction or adaptation; (2) communication to the public.”

“Section 30. Any of the following acts against a computer program copyrighted under this Act performed without permission in accordance with Section 15(5) shall be deemed an infringement of copyright: (1) reproduction or adaptation; (2) communication to the public; (3) rental of the original or copies of the work.”

“Section 31. Whoever knows or should have known that a work is made by infringing the copyright of another person and commits any of the following acts against the work for profit shall be deemed to infringe the copyright: (1) selling, holding for sale, offering for sale, letting, offering for lease, selling by hire purchase or offering for hire purchase; (2) communication to the public; (3) distribution in a manner which may cause damage to the owner of copyright; (4) self-importation or importation on order into the Kingdom.”

“Section 69. Any person who infringes copyright or performers' rights under Section 27, 29, 30 or 52 shall be liable to a fine of between 20,000 baht and 200,000 baht.

If the offense referred to in the first paragraph is committed by way of trade, the offender shall be liable to imprisonment of between six months and four years or a fine of between 100,000 baht and 800,000 baht or both imprisonment and fine.”

“Section 70. Any person who commits a copyright infringement under Section 31 shall be liable to a fine of between 10,000 baht and 100,000 baht.

If the offense referred to in the first paragraph is committed by way of trade, the offender shall be liable to imprisonment of between three months and two years or a fine of between 50,000 baht and 400,000 baht or both imprisonment and fine.”