Thailand Law Journal 2010 Spring Issue 1 Volume 13

From applying these legal provisions, one can see that judges have a significant leeway to interpret those provisions. If my understanding of the defected case report on the website of the Supreme Court is correct, the disagreement between judges lied in issue whether to treat the fact of reproducing the program with the purpose of mass production of computer disks and the fact of such mass production, as a single offence or as two separate offences according to Sections 27 and 30. The judges, however, had no disagreement on holding the defendant liable on the grounds of Section 31 for illegal trade in copyright materials as a separate offence deserving another punishment. It appears that there is nothing in this statute that should prevent the court from saying that the offender in Sony case committed only one single offence against copyright owner, and not 2 or 3 as the courts thought.

One could argue that both courts misunderstood the Copyright Act because their approach to law is based on the letter rather than on finding the spirit of the law. The judges read the Act very carefully. They correctly found the sections 27, 30 and 31 are applicable to the case. What they found incorrectly, however, is that these sections speak about 3 (the court of first instance) or 2 (the Supreme Court) offences. If they looked at the spirit of law, they would come to a different conclusion that in this case there was a single offence against copyright law.

The spirit of the law in prosecuting copyright offenders as criminals is based on the nature of the offence. As long as a person makes a single copy of a computer program and enjoys the games for himself privately at home, there is no reason for application of criminal law. He indeed committed a wrongdoing, but it is not a criminal offence. His wrongdoing is an offence of private law. He can be sued by means of a civil action. Criminal law should not be applied if public interest is not seriously endangered. In the present case, the defendant was attempting to sell many thousands of computer disks which could potentially grow into a business practice affecting not only a single corporation from abroad, but many other creators of computer games around the world including Thai citizens. There is an evident reason for applying criminal law in this case.
Thus, there was a single offence whose nature was in seriously endangering creators of computer programs and their legitimate owners by setting up a business with high volume of production of the computer disks with illegal copyright materials on them. The wording of Sections 27 and 30 are supporting the view of a single offence. The action of the defendant in attempting to sell the disks is covered by their wording: “communication to the public” here means offering to the public by means of trade the opportunity of accessing to the copyright materials without the license of their owners. Thai statutory word à¼Âá¾Ãè, translated as communication, carries the meaning of making something available to the public. Section 4 contains an official interpretation of the term: “’communication to public’ means making the work available to public by means of performing, lecturing, preaching, playing music, causing the perception by sound or image, constructing, distributing or by any other means.” Selling is distributing and therefore, applicable to the present case.

Unlike Section 31, Sections 27 and 30 are broader in application and cover also those offences which are committed with the purpose of commercial exploitation. Therefore, the application of Section 31 is not necessary since it deals only with those commercial offences which do not include reproduction, adaptation or communication to the public. The correctness of such interpretation of Thai law is supported by express wording of Section 69 which refers to an aggravating circumstance by means of trade in relation to Sections 27 and 30.

Further, a different interpretation would not make sense if we look at the amount of penalties for violating Sections 27, 30 and 31. Section 69 imposes sanction for violating Sections 27 and 30 at the limit of 4 years of imprisonment and 800.000 baht, while violating Section 31 according to Section 70 entails maximum of 2 years of imprisonment and 400.000 baht. Thus, the fact that the defendant was punished for the same offence twice on the basis of Sections 69 and 70 is an example of injustice caused by erroneous legal reasoning. Application of Sections 31 and 70 in this case was unnecessary since the offence was fully covered by the provisions of Sections 27, 30 and 69 correspondingly. Sections 31 and 70 must be used only in the cases where the offender is not charged for illegal reproduction.

The mistake of Thai judges was caused by the formalist approach which is so brilliantly criticized in such Thai folktales as Lady Phigunthong,²³ Stupid Men,²⁴ and many others. It must be acknowledged that those who composed the Copyright Act did not write it in a clear and comprehensive form when dealing with criminal offences. Even a brief look at the Sections quoted above, shows significant linguistic ambiguities. For example, Section 30 refers to “rental of the original or copies of the work” as a separate ground for prosecution unlike Section 27, yet it is not clear why and how it is different from “communication to the public” as a ground for prosecution according to both Sections 27 and 30. The rationale for mentioning rental in this section is understandable: most computer programs are not sold like a book, they are licensed for a private use only. A rental of a program, which is easy to copy, will have a more detrimental effect on the copyright owners than it would be a case with a rental of a book, even though the latter can also be scanned and posted on the Internet for a download. The problem here largely lies with the ambiguity of “communication to the public.” Thai legislator should have done much more to clarify the term particularly in relation to the intent and purpose of the communication liable of punishment.

Another ambiguity is seen in Section 70. The wording of this section may mean that offences under Section 31 for profit เพื่อการค้า may be committed not only by means of trade เพื่อหากำไร. Section 31 deals itself exclusively with 4 types of activities which all must pursue profit: selling, communicating to the public, distributing, and importing. The first and the fourth types apparently can hardly be done outside trade activities. It is not clear, however, what kind of activities the Thai legislators had in mind in relation to communication to the public for profit and distributing for profit that can be done not by means of trade in goods or services.

Whether the defendant in this case should be prosecuted under 1, 2, or 3 separate offences may remain controversial. What is beyond controversy is the fact that copyright legislation in general and Thai copyright law in particular when dealing with criminal offences are too general in scope, and require from the police, prosecutors, and judges the ability to make reasonable, fair, and just decisions depending on the merits of the case in hand. It is not enough for them to know the law, they must have common sense. In this respect, Thai folktales are a source of wisdom and a training manual in making decisions according to common sense.