Thailand Law Journal 2009 Spring Issue 1 Volume 12

From the problems above, it can be apparently seen that the anti-circumvention provision confers much power on the copyright owners in protection of their technologies and their rights. In addition, notably, those problems only occur in the United States which promulgates DMCA as a role model in WIPO treaties. This is because countries other than the United States still are anxious about diminution of the public interest. In addition, those nations realize that the strong anti circumvention provision may create the same problems as in the United States. Consequently, those nations hesitate to enact strong anti-circumvention provisions. Some countries make a clear exception on the fair use right. For example, In Australia, under section 1 1 6A, the copyright only prohibits circumvention technologies in respect of import or public distribution but does not cover use of circumvention technologies. Some countries such as Thailand still resist adding anti-circumvention provision to their copyright law. From this point, it can be said that this anti-circumvention provisions, (technological approach) may not accomplish the goals of harmonization in international copyright law. However, there is still in progress of bilateral agreement. The United States intends to put this anti-circumvention provision in every bilateral agreement. For example In the Australia and the United States free trade agreement, the United States requires Australia to provide adequate legal protection and effective legal remedies against the circumvention of effective technological protection measure.⁴⁷ In my view, the harmonization in anti-circumvention provision may be possible by trade -influenced negotiation.

Conclusion
Harmonization in copyright law is clearly occurring these days. However, the trend of this harmonization is to favor copyright owners. This may be, because, copyright owners put much effort to persuade their governments to protect their works. As a result, the copyright law these days is only a sword of the copyright owners to punish their pirates. On the one hand, some may think that this strengthening copyright law is suitable for protecting works of copyright owners in the digital environment that is crowded with copyright piracy. On the other hand, it can be said that this harmonization already destroys a balance between copyright and public interest. As can be seen, there is diminution of public interest every time that harmonization has occurred. In my view, this kind of harmonization cannot be a real harmonization of international copyright law. Real harmonization may occur when the copyright owners accept that they should not only collect the benefit from their work but also contribute to the benefit of others

47. Australia and the United States free trade agreement , Article 1 7.3.7(a).

This article is published with the kind permission of Thiti Susaoraj, Judge Trainee. This article originally appeared in Volume 54, No. 3, September – December 2007 edition of Dulapaht Law Journal.