Thailand Law Journal 2010 Spring Issue 1 Volume 13

Third, Thai law fails not only pay serious consideration to the interests of both the victim and the offender, it also fails to meet the task of restoring the social harmony caused by a criminal offence. Thai folk moral principles are very much similar to the ideas of restorative justice³⁰ which are ignored by Thai law of intellectual property in relation to IP crime. When the penalty is imposed, Thai judges follow either retributive philosophy of punishment or the philosophy of punishment as a deterrent. From reading Thai folktales, it is clear that Thai folk moral principles for criminal justice favour restitution over retribution or deterring. Thai folktales philosophy does not deny retribution. The function of retribution, however, is given to the universal law of Karma.³¹

Fourth, Thai law of IP criminal offences lost its touch with moral principles of Thai folk culture at a very important point. “Criminal law must inflict punishment if it is endorsed by Karma.”³² Apparently, there is no evident connection between IP crime on the one hand and the evil characteristic of the offence. According to Thai folktales, a person deserves punishment when he is evil, or his act is evil.³³ It has been said above, that Thai law tends to ignore the underlying reasons for individual offending behaviour. Moreover, it also ignores the importance of demonstrating that intellectual property offences in themselves are evil. From the view point of Thai folk morality, it is possible only through showing clearly the detrimental impact of an offence on the victim in each individual case. Thai law can be used to criminalize very much petty intellectual property violations. In one case discussed above, a person was given a maximum fine for being caught with only 80 disks. There is no threshold for bringing a criminal charge as it exists, for example, in China. There a person would be prosecuted only if being caught with 500 copies. Such threshold appears to be consistent with WTO obligations.³⁴ However, according to the moral implications of Thai folktales, it would be equally unjust to establish an arbitrary threshold applicable to all cases rejecting the particular features of each case. Thus, the Chinese solution is not ideal from the point of view of Thai folk ethics, but it at least prevents a criminalization of millions if not hundred millions of petty offenders. In order to make Thai criminal law ethically justifiable in relation to IP, the evil consequences of a particular act of violating intellectual property must be clearly demonstrated. Without such demonstration, suffering imposed by the court on a defendant will become evil and immoral in itself, making Thai law, Thai judges, police and prosecutors evil in the perspective of Thai folk moral principles.

Fifth, Thai folktales maintain the supremacy of mitigating circumstances over aggravating circumstances of an offence when determining an appropriate penalty.³⁵ In many cases described above, judges did not impose a severe punishment. However, the scope of mitigating circumstances remains extremely limited. The main mitigating circumstance remains the fact of confession of the defendant. Sometimes, the court will look at the fact whether the offender had a previous criminal record, whether the volume of trade or illegal production of goods protected by intellectual property law significant or not. This scope, however, does not include personal characteristics of the offender. It is noteworthy that Thai Penal Code gives the power to the court to examine age, background, history, behaviour, intelligence, education, health, the state of mind, habits, environment of the offender, and other extenuating circumstances when deciding to reduce the penalty or not impose penalty at all.³⁶ It is evident from the cases discussed above that the courts when determining the penalty do not refer to moral or immoral characteristics of the offender, his state of mind, habits, etc.

It must be noted that Thai folk moral principles do not endorse the fusion of criminal law and morality to the extent as to imply that all immoral behaviour or every immoral person must be punished. Thai folk moral principles support a minimum content of criminal law which must pursue the goals of restoration of the rights of the victim and bringing social harmony into the society.³⁷

Conclusion

Thai folktales favour a limited application of criminal law: “The reason for the limited content of law and mitigation lies in the belief that the evil committed by the offender will come to him back in any way, but the suffering which is inflicted (by judges) on him over measure will produce negative karmic consequence on the person in charge.”³⁸ It does not imply that Thailand must stop criminalizing all intellectual property offences leaving them to be nothing more than civil law or administrative wrongdoings. Thai moral principles require flexibility and compromise. Since Thailand is under WTO obligations, it must provide criminal law sanctions in certain situations. At the moment, Thai law went far beyond what is necessary to comply with TRIPS Agreement by penalizing petty violations of intellectual property rights. In these circumstances, the implication of Thai folk wisdom for Thai law makers, judges, prosecutors and the police is to limit the scope of applicability of criminal sanctions only to most serious offences where the evil nature of the offence and the danger to the public interest is evident. The example of such offences can be the case of fish sauce discussed above. In other cases, such as 80 DVD disks case or Kipling handbags case, the use of criminal law appears to be disproportionate.

Thai criminal law in relation to intellectual property needs change. The latter does not need to be revolutionary. To the apparent lack of moral basis for penalizing petty intellectual property violations, it is possible to apply a policy of “flexible resistance” whose art is so well taught in Thai folktales.³⁹ Thai penal code, such as Section 56, provides channels for such resistance, and those channels must be used by Thai courts regularly.

It must be emphasized that a mere use of criminal proceedings against persons without careful look at their background, state of mind, habits, environment, etc. can lead to a devastating impact on the offender by labeling him as a criminal, by pressing him to confess the guilt he does not feel, by threatening him and making him fear more than love. The strength of enforcing intellectual property rights will never be dependent on the fear of punishment. It can be efficient only in the situation where the majority of people will have moral convictions to respect the rights of creators, inventors and business proprietors of trademarks. Thai folktales contain moral lessons of nurturing mutual care and reciprocity, and these must be the tasks of skillful law engineering requiring a new type of law based not on punishment and fear, but education and respect.

According to Thai folk moral vision, “fundamental task of law is to restore and secure harmony in our world divided by ambition, greediness and selfishness.”⁴⁰ At this time, intellectual property law tends to be used not so much by actual creators and inventors, as by big businesses in the pursuit to secure their profits. It would be also a mistake to represent every offender as an innocent person stricken by poverty and struggling for a survival. Offenders are often lacking the sense of moral responsibility, and they commit intellectual property violations being driven by insatiable greed. Contemporary violations of intellectual property rights are to a larger extent driven by the addiction to consumption, and the businesses who own IP rights are responsible for its spread. The addiction can hardly be addressed properly by criminal law penalties. It can be treated by education: by implanting the right attitudes. Punishment can lead to alienation and bitterness. A moral lesson by the police or a judge combined with the sense of mercy and compassion can contribute to the change in the attitudes.  To provide such lessons, you need a new type of a policeman and a new type of a judge, who are not like senseless machines called to apply rules to certain external facts. They must be ready to a compassionate response by taking inner perspective and feelings of other people into account.

To conclude, Thai folk moral principles require that law of intellectual property offences must be based on moral obligations; it must provide the environment for protecting intellectual property not by implanting the fear of punishment, but moral motivation to comply with law.