CAN THAI COPYRIGHT LAWS BE PROPERLY APPLIED
TO INTERNET ACTIVITIES?

By Saravuth Pitiyasak

Copyright infringement under the Thai CA 1994 can be divided into two categories: primary infringement and secondary infringement. Primary infringement, stipulated from Sections 27 to 30 of the Thai CA 1994, arises when other people use the exclusive rights of the owner of the copyright without his or her permission. On the other hand, secondary infringement, stipulated in Section 31 of the Thai CA 1994, arises when other people commit the infringement in the course of selling, communication to the public or importation of the infringing copies with knowledge or reasonable grounds of knowing about the primary infringement. On the Internet, copyright infringement may occur in the following activities.

(1) Browsing

Browsing is the most common activity on the Internet. Browsing is the term used when an Internet user uses a browser to locate and display web pages. A browser(1) is a software program designed to read the Hypertext Markup Language ("HTML"), the authoring language that is used to write web pages. When an Internet user opens a web page, the computer will operate by temporarily storing the content of that page in its random access memory ("RAM") in order to display the page on the computer monitor. This temporary storage of a copyrighted work in the RAM brings about the crucial question in various countries as to whether the activity constitutes copying under copyright law(2).

In the United States, a copy is created on a computer system when it is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration(3)." In this regard, several US courts have held that temporary storage of a copyrighted work in RAM constitutes copying under the US Copyright Act(4). The court in MAI v Peak found that because the copy created in RAM can be "perceived, reproduced, or otherwise communicated," the loading of software into RAM creates a "copy" under Section 101 of the US Copyright Act(5). However, some critics have argued that the court decisions misread the statutory language of the US Copyright Act since under the US Copyright Act a copy must be communicated for a period of more than transitory duration(6). Some further argue that a copy stored in RAM on the user's computer is an unavoidable consequence of technology and transient, and thereby, the copy may be permitted under Section 107 of the US Copyright Act that allows copying if it is an essential step in the utilization of the computer program(7).

In the European Union, Article 2 of the Directive 2001/29/EC of the European Parliament and of the Council on the Harmonization of certain aspects of Copyright and related rights in the Information Society ("EU Copyright Directive") defines "exclusive right" as "the right to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part." As a result, the temporary reproduction of a copyrighted work in RAM also constitutes reproduction under the EU Copyright Directive. However, Article 5(1)(a) of the EU Copyright Directive provides the exception that "temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable a transmission in a network between third-parties by an intermediary, of a work or other subject matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2." Therefore, temporary storage of a copyrighted work in RAM by the Internet user is allowed under the EU Copyright Directive.

In Thailand, one commentator argues that the essence of copyright infringement is on "duplication" or "copying," and thereby the use of a computer in browsing the Internet and incidentally copying copyrighted work into the RAM does not constitute reproducing or copying since, after shutting down the computer, no copy of the copyrighted work is produced(8). In other words, transient copying is not the reproduction within the meaning of the Thai CA 1994(9). This opinion may not be acceptable in the international arena since it is inconsistent with the international trend found in the US Courts and the EU Copyright Directive discussed above.

Unequivocally, browsing on the Internet causes the necessary reproduction of a work, even temporary, into the RAM. The question is whether or not "reproduction" under the Thai CA 1994 requires "permanent reproduction" in order to satisfy its definition. In this regard, the Thai CA 1994 defines "reproduction" broadly to include any method of copying(10), and for a computer program, it means duplication or copying of the program with any method(11). Furthermore, no Section in the Thai CA 1994 stipulates that the reproduction must be permanent. Thus, a temporary reproduction or a transient copy in the RAM could satisfy the meaning of reproduction under the Thai CA 1994.

Nonetheless, since there is as yet no court decision or statutory legislation clarifying whether or not the temporary reproduction of a copyrighted work in RAM constitutes copying under the Thai CA 1994, the answer to this question in Thailand is still unclear.

(2) Caching

Caching is the term used when the browser keeps in the RAM and hard disk of the user's computer copies of the texts and images of web pages visited, in order to help facilitate the revisiting of those web pages(12). The purpose of caching is to reduce the demands on the network bandwidth (the information-carrying capacity of the Internet connection between the web server and the user's computer) and thereby it has helped to prevent the Internet from becoming overloaded by the rapid growth of World Wide Web Traffic(13).

By keeping copies of web files in the RAM and hard disk of the user's computer, the browser can retrieve the visited web pages from the user's computer. It does not have to retrieve those pages across the Internet every time the user revisits particular pages. Caching in RAM helps the revisiting of web pages over the course of one session of Internet use whereas caching on the hard disk helps the revisiting of web pages from one session to the next.

The issue concerning caching is whether caching constitutes copying under copyright law. In the United States, the Department of Commerce's White Paper on Intellectual Property on the National Information Infrastructure considered copies of web page text and images caching in the RAM and hard disk of the user's computer, where they might remain until used in the future, to be reproductions for copyright purposes(14). In the European Union, caching both in the RAM (temporary) and hard disk (permanent) clearly constitutes reproduction under Article 2 of the EU Copyright Directive.

In Thailand, arguably caching on the hard disk of the user's computer is a reproduction under the Thai CA 1994 because it creates a permanent copy of work that can be retrieved in the future. However, like browsing, the question of whether caching in the RAM can satisfy the meaning of reproduction under the Thai CA 1994 remains to be addressed. Without any court decision or statutory legislation clarifying this question, the answer remains unclear.

(3) Mirroring

Mirroring is the term used when one server makes complete copies of files of another server and places them online. It is an alternative to caching decided by the operator of the mirror server(15). The mirror server functions in the same manner as the original server holding the information. The purpose of mirroring is to lessen the chances of overloading the original servers.

The mirror servers are sometimes mirrored without the consent of the original server. This causes a threat to the website located in the original server. Normally, a website earns income by selling advertising space on its web page. The advertising rate of a particular web page depends on the number of hits that the page receives from the Internet users. A mirror site of an original site could drastically reduce the hit of that original website. As a result, mirroring can negatively affect the advertising rate of the original website.

Mirroring raises the copyright question as to whether it infringes the reproduction right of the owner of the original website. In this regard, even though a number of websites in various countries, particularly in Australia have mirrored many US and European websites, there is as yet no case law concerning mirroring(16).

In Thailand, arguably it is quite obvious that mirroring is a reproduction under the Thai CA 1994 since it creates an entire and permanent copy of the original work. Thus, mirroring clearly infringes the reproduction right of the owner of the original website under Section 15(1) of the Thai CA 1994.

(4) Hyperlinking and Deep Linking

Hyperlinking is the term used when the Internet user uses a hypertext link on a web page to enable him or her to jump to another web page of the same website or another website. Generally, hyperlinking to the home page of another website does not cause problems, because normally the owner of another website posts his or her website in order to be visited by Internet users. Nevertheless, hyperlinking may cause a copyright problem where a text or image qualifying as a copyrighted work is used as the text or image for hyperlinking. In addition, hyperlinking becomes a serious problem where a link is to a web page, bypassing the home page. This is known as "deep linking," and is much more controversial where copyright infringement is concerned. Website owners often object to deep linking because it causes users to miss advertising and this thereby negatively affects their revenue.

The first case challenging hyperlinking and deep linking was in Scotland. In Shetland Times v Wills(17), Shetland Times (the plaintiff) claimed that Shetland News (the defendant) infringed its copyright by reproducing some headlines on its home page as the text for hyperlinking to the newspaper articles of the plaintiff. The plaintiff also claimed that the links to its site bypassed its home page, which displayed its advertising; the link was directly to an internal web page of the plaintiffs. In response, the defendant argued in respond that the use of the plaintiff's headlines could not constitute copyright infringement, because, free access constituted a basic principle of the Internet. The Court of Sessions in Edinburgh, by Lord Hamilton, granted the plaintiff an interim interdict (comparable to a US preliminary injunction) preventing the defendant from making further hyperlinking and deep linking to any internal page of the plaintiff's site through headlines. The case was, however, settled between the parties before the trial concluded, and thus there is no authority deriving from the case. Under the terms of the settlement, Shetland News could deep link to articles on the Shetland Times website, but all headings of these articles must have the words "A Shetland Times Story" printed below.

Three later cases challenging hyperlinking and deep linking arose in the United States. In Ticketmaster Corp. v Microsoft Corp(18), like the Shetland case, there was no authority deriving from this case since the case was settled in February 1999, with the defendant's agreement not to make deep links to the plaintiff's subordinate web pages. Rather, the defendant agreed to link its Internet "Sidewalks" guides only to the plaintiff's home page.

In Ticketmaster Corp. v Tickets.com Inc(19), on 27 March 2000, the District Court stated that facts were not protected by copyright and thus the use of facts for hyperlinking and deep linking did not constitute copyright infringement. Secondly, the court held that hyperlinking, including deep linking did not itself involve a violation of the Copyright Act since linking simply transferred the user to the plaintiffs web pages and therefore no copying was involved. Finally, the court found that deep linking by itself (without confusion of source) was not unfair competition because the defendant did not pass itself off as the plaintiff but told the user that he or she would be transferred to another site(20).

Part  2

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(1) The most popular browsers are Internet Explorer and Netscape Navigator. See in Just Browsing's
website at http://netforbeginners.about.com/library/weekly/aa120799.htm.
(2) Berne Convention and WIPO Copyright Treaty do not address the issue of temporary reproduction.
(3) US Copyright Act 1976, s.102(a).
(4) Stenograph L.L.C. v Bossard Assocs., Inc., 1998 US App. LEXIS 11483 (D.C. Cir. 1998); MAI System Corp. v Peak Computer, Inc., 1933 US App. LEXIS 7522 (9th Cir. 1993).
(5) Ibid.
(6) Reese, Anthony R., "Intellectual Property Challenges in the next century: Article the public display right: The Copyright Act's Neglected Solution to the Controversy over RAM 'Copies' " (2001) University of Illinois Law Review, p.83.
(7) US Copyright Act 1976, s.107 - Limitation on exclusive rights: computer programs - reads:
"(a) Making of additional copy or adaptation by owner of copy. Notwithstanding the provisions of s.106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner."
See in Carothers, Jo Dale, "Protection of the Intellectual Property on the World Wide Web: Is the Digital Millennium Copyright Act Sufficient?" (1999) 41 Arizona Law Review, p.937.
(8) Thai CA 1994, s.14.
(9) Weeraworawit, Weerawit, above n.3.
(10) Thai CA 1994, s.4 reads:
"Reproduction includes any method of copying, imitation, duplication, molding, sound recording, video recording or sound and video recording for the significant part from the original, copy or publication whether in whole or in part and, as for a computer program, means duplication or copying of the program from any medium for the significant part with any method without a manner of creating a new work whether in whole or in part."
(11) Ibid.
(12) See the meaning of "cache" at Whatis.com's website, http://whatis.techtarget.com/definition/ 0,,sid9_gci211728,00.html.
(13) Ibid.
(14) Information Infrastructure Task Force, "Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights" (1995), http://www.uspto.gov/web/offices/com/doc/ipnii/ipnii.txt.
(15) Vermut, Richard S., "File Caching on the Internet: Technical Infringement or Safeguard for efficient Network Operation?" (1997) Journal of Intellectual Property Law, p.273.
(16) Ibid.
(17) Shetland Times v Wills. 1997 FSR 604, 608 (Scot.), http.//www.jinls.ectu/cyber/cases/shetld2.html.
(18) Ticketmaster Corp. v Microsoft Corp., Case no.97-3055 (C.D. Cal. filed Apr. 28, 1997), http://legal.web.aol.com/decisions/dlip/tickcomp.html.
In that case, Ticketmaster, an online ticket seller complained about the Microsoft's unauthorized deep link to its site because the link enabled Internet users to bypass its home page which contained advertising and go directly to an internal page that contained event and ticket information. Ticketmaster alleged that by offering this bypass, Microsoft's "Seattle Sidewalks" service constituted trademark dilution; false, deceptive and misleading representation of association; unfair competition; and unfair business practices.
(19) Ticketmaster Corp. v Tickets.com, Inc., 2000 US Dist. LEXIS 4553 (C.D. Cal. 2000).
In that case, Ticketmaster. an online ticket seller sued Tickets.com, a data aggregator, for using information contained in Ticketmaster, unauthorized deep linking to the relevant page within the Ticketmaster site, and unfair competition. Ticketmaster alleged that the unauthorized deep link of Tickets.com constituted copyright infringement. In particular, Ticketmaster alleged that Tickets.com infringed Ticketmaster's copyrights by downloading and reproducing its web pages.
(20) US Code, Title 15. Chapter 22, s.1124.