(7) Aggressive Advertising

One Internet advertiser, Gator has recently challenged the idea of banner advertising(43). Gator offers free software designed to help users fill in forms without typing, remember things like passwords or personal details, and protect and encrypt users' data on users' computers. In addition, Gator comes with Offer Companion - both products deliver special deals and information based on websites that the users visit(44). Based on this service, without the users noticing, Gator monitors Internet activities of users, watches what websites they have visited, and looks out for banner advertisings. Then Gator places one of its own advertisements in a pop-up window, neatly covering up all of the original advertisings. The pop-up remains over the banners even when the users scroll down the page.

This spyware has made a lot of people, not only the users but also other advertising companies, furious. The United States Interactive Advertising Bureau ("US IAB") has accused Gator of breaking copyright and trademark laws, claiming that third-party websites have not agreed to have this pop-up banner displayed, that consumers may be confused about this encroaching pop-up and that advertisers that pay for banner advertisements are being undermined(45). Gator had refused to admit liability and sued the US IAB in a District Court in San Francisco. Shortly thereafter, however, Gator dropped its suit against the US IAB and cooperated with the US IAB in a committee to resolve their conflict(46).

This form of aggressive advertising on the part of Gator has raised the question of whether it constitutes copyright infringement in the light of the Thai CA 1994. In this regard, arguably the pop-up advertising belonged to Gator and was sent directly to display on the users' computer monitors. However, Gator did not copy or adapt anyone's works and thereby there would have been no case of primary or secondary copyright infringement under the Thai CA 1994.

2. DEFENCES TO COPYRIGHT INFRINGEMENT ON THE INTERNET

Under the Thai CA 1994, Internet users can claim the following defences as the exceptions to copyright infringement on the Internet.

(1) Licenses

Like UK copyright law(47) Sections 27 to 30 of the Thai CA 1994 also make it clear that no act will infringe copyright in a work if it is done with the authorization of the copyright owner. In the case of an express license where there are well-drafted contracts, the defence to copyright infringement will be straightforward. However, it is much more difficult to decide if this defence would apply in relation to the case of implied license where the contracts are ambiguous or where no licensing contract is found.

Arguably, since the concept of implied license is widely accepted in many modernized countries, implied license should be realized as a defence to copyright infringement in Thailand, including activities on the Internet such as browsing and caching. For example, in the case of browsing and caching, Internet users should be able to claim implied license as a defence because the owners of the copyrighted works who place their works on the Internet implicitly allow others to view them and the reproduction caused by browsing and caching is beyond the control of the users. However, since there is as yet no statutory legislation or a court decision in Thailand to recognize implied license as the exception to copyright infringement, the Internet users are still uncertain whether they can claim implied license as a defence.

(2) Statutory Exceptions

Like UK copyright law(48), the statutory exceptions to copyright infringement under the Thai CA 1994 are based on the concept of "fair dealing." Sections 32 to 43 provide the exceptions to infringement in limited cases, all of which are subject to the principle stipulated in Article 13 of TRIPs Agreement(49), namely that unless there is conflict with a normal exploitation of the copyrighted work by the owner of the copyright or unreasonable prejudice to the legitimate right of the owner of copyright, there is no infringement of copyright(50).

Section 32 of the Thai CA 1994 provides exceptions to copyright infringement for works other than computer software for the following acts: (1) research or study of- the work which is not for profit: (2) use for personal benefit or for self benefit together with the benefit of other family members or close relatives. At present, there are two famous Thai Supreme Court Judgments concerning the statutory exceptions to copyright infringement under that provision.

The first case is the Thai Supreme Court Judgment no.1732/2543. In the case, the plaintiff (Public Prosecutor) and the joint plaintiffs (the copyright owners of textbooks which were protected as a "literary work" under the Thai CA 1994) alleged that the defendant infringed the copyrighted works of the joint plaintiffs because it copied the joint plaintiffs' textbooks in whole and in part without the joint plaintiffs' authorization. The defendant argued that the reproduction was made under a hire of work contract between students and itself, and that the books were used for educational purposes by the university. The Thai Central Intellectual Property and International Trade Court found that the defendant copied the plaintiffs' copyrighted works using his own initiative and not the request of students. Therefore, the defendant could not claim the statutory exception to copyright infringement under Section 32 of the Thai CA 1994 because its act was not for educational or research purposes. The Thai Supreme Court affirmed the judgment by holding that the defendant was liable for copyright infringement since it had copied the plaintiffs' copyrighted works without authorization and then sold them to students for commercial purposes and profit. Such an act was not a transaction requested by students who needed the copies for research or study, and therefore, it did not qualify as the exception to copyright infringement under Section 32 of the Thai CA 1994.

The second case is the Thai Supreme Court Judgment no.5843/2543. In the case, the plaintiff (Public Prosecutor) and the joint plaintiffs (the copyright owners of textbooks which were protected as "literary work" under the Thai CA 1994) alleged that the defendant reproduced the textbooks for profit without the plaintiffs' authorization and therefore it infringed the plaintiffs' copyright. The defendant claimed that its occupation was to be hired to copy any document and the said reproduction was carried out under a hire of work contract between students and itself. The Thai Central Intellectual Property and International Trade Court dismissed the case. The Thai Supreme Court, however, reversed the judgment by holding that the defendant was liable for copyright infringement and that it could not claim "use in the purpose of a research or study which is not for profit and use for personal benefit" under Section 32 of the Thai CA 1994 as the exception to copyright infringement since it was done for commercial purposes and profit.

The above Thai Supreme Court Judgments implied that if the defendant had proven that the reproduction was carried out under a hire of work contract, it would not have been liable for copyright infringement. The statutory exception under Section 32 of the Thai CA 1994 could not apply to the cases because the defendant had no evidence to prove that the reproduction was done under a hire of work contract between students and itself. Without such evidence, the court had to decide the case according to the plaintiffs' accusation and evidence.
On the Internet, the statutory exceptions to copyright infringement can be classified into two categories: exceptions for works other than computer software under Section 32 of the Thai CA 1994 and exceptions for computer software under Section 35 of the Thai CA 1994(51). The main exceptions will be use for academic purposes that are not for profit and use for personal benefit.

In the case of browsing and caching, an Internet user can claim "use of personal benefit" under Section 32 of the Thai CA 1994 as the exception to copyright infringement of the web page content. By contrast, Section 35 of the Thai CA 1994 does not provide exception for the use for personal benefit as found in Section 32. As a result, an Internet user cannot claim "use for personal benefit" as an exception to copyright infringement of computer software.

In the case of mirroring, a mirror website owner might not be able to claim the statutory exceptions to copyright infringement under the Thai CA 1994 since as mentioned earlier the mirror website could drastically reduce the number of hits of the original website, and that would conflict with a normal exploitation of the copyrighted work by the original websites or unreasonable prejudice to the legitimate right of the original websites.

In the case of hyperlinking where a text or image qualifying as a copyrighted work is reproduced and used as the text or image for hyperlinking, a linking website owner can claim "use in the purpose of a research or study" under Section 32 of the Thai CA 1994 as the exception to copyright infringement if such hyperlinking is done without profit since normally hyperlinking is not in conflict with a normal exploitation of the copyrighted work by the linked website nor does it cause unreasonable prejudice to the legitimate right of the linked website. Rather, hyperlinking could significantly increase the number of hits of the linked website and thereby it could positively affect its revenue.

In the case of deep linking where a text or image qualifying as a copyrighted work is reproduced and used as the text or image for deep linking, a deep linking website owner might not be able to claim "use in the purpose of a research or study" under Section 32 of the Thai CA 1994 as the exception to copyright infringement even if such linking is done without profit since normally deep linking is in conflict with a normal exploitation of the copyrighted work by the linked website or causes unreasonable prejudice to the legitimate right of the linked website. Deep linking may cause Internet users to miss advertising in the homepage of the linked website and thereby it negatively affects revenue of the linked website.

In the case of inline linking or framing where inline linking or framing is done without profit, an inline linking website owner or a framing website owner may claim "use in the purpose of a research or study" under Section 32 of the Thai CA 1994 as the exception to copyright infringement if it can prove that such inline linking or framing is not in conflict with normal exploitation of the copyrighted work by the original website or does not cause unreasonable prejudice to the legitimate right of the original website.

Another issue of concern to copyright owners is the unique characteristic of the Internet, that is, any Internet user can easily make a copy of an entire piece of work posted on the Internet within a second. This raises the question as to whether the entire copying of a copyrighted work on the Internet should be allowed. In this regard, the US courts hold that "Blatant reproduction has been prohibited even in the context of educational instruction" and "the copying of all, or substantially all, of a copyrighted work cannot be held a fair use merely because an infringer has no intent to infringe(52)."

In Thailand, there is no court decision with a direct ruling on the issue of whether the entire copying of a copyrighted work can be considered as a fair dealing. Nonetheless, under the principles of copyright law stipulated in Section 32 paragraph 1 of the Thai CA 1994, the dealing must not conflict with a normal exploitation of the copyrighted work by the copyright owner and must not unreasonably prejudice the legitimate right of the copyright owner. Making an entire copy of the copyrighted work in paper-based forms may be contrary to the normal exploitation of the copyright owner since every user would make a copy of the copyrighted work rather than buying an original. This would also unreasonably prejudice the legitimate right of the copyright owner. By contrast, making an entire copy of the copyrighted work in digital forms on the Internet may not be contrary to the normal exploitation of the copyright owner since the owner of the copyrighted work who places its work on the Internet implicitly allows others to view it and knows that the a full copy of web page can be made within a click of mouse. In addition, Internet users can claim "use of personal benefit" under Section 32 of the Thai CA 1994 as the exception to copyright infringement for the entire copy of the copyrighted work, unless it is done for profit.

(3) Insignificant Part

There will be no copyright infringement of a work if the reproduction has not been done for a significant part of the work, whether in whole or in part. The Thai CA 1994 does not define, nor does the court decide what is meant by "significant part." Some Thai academics, however, agree that only the quantity of the work alone is not the test. The test for significant part should be emphasized on quality rather than quantity(53). This interpretation is along the lines of the UK cases in Designer Guild Limited v Russell Williams (Textiles) Limited(54) and in Cantor Fitzgeral International et al v Tradition (UK) Limited(55) which hold that the test for substantiality is qualitative rather than quantitative. Nonetheless, it is not easy to draw the line between what would constitute a "significant part" and "insignificant part," particularly on the Internet where Internet users can make a full copy of web page within a click of a mouse.

3. SUMMARY AND COMMENTS

The Thai CA 1994 is unpredictable when applied to Internet activities. Many uncertainties need to be clarified. The author suggests that in order to bring certainty to the activities on the Internet in Thailand, the following steps should be pursued.

Firstly, the Thai Intellectual Property Department should closely monitor international trends of the protection of databases .and study the necessity of sui generis protection in Thailand. Secondly, a specific provision on the protection of web broadcasts or webcasting should be added in the Thai CA 1994. Thirdly, concerning the works that are not subject to copyright protection under the Thai CA 1994 but are protected under some foreign copyright laws, the Thai Intellectual Property Department should inform the public and e-businesses so that they are aware of the possibility of copyright infringement of those works in other countries.

Fourthly, hyperlinking and deep linking should not be prohibited under copyright law since they can do more good to the public or the Internet users than harm to copyright owners. Normally, Internet users have to know the domain name of the website before visiting that website. Hyperlinking and deep linking can lead them to the website or web page which they would like to visit without searching for its IP address or domain name. These links thus help increase the numbers of visitors to that website or web page and facilitate the flow of information on the Internet. Furthermore, links are very common on the Internet since Internet users can add on to their computers their favorite website or web page, so that next time they can jump directly to that website or bypass the home page of that website to the relevant page in question. It is only in the case where the owner of a website obviously prohibits the link either by a statement or encryption could hyperlinking and deep linking then be held illegal.

In Thailand, there should be clear statutory legislation allowing both hyperlinking and deep linking. However, since the Internet is a worldwide phenomenon, legal links in Thailand may be illegal in the jurisdiction where the server of the linked website is located. The Thai Intellectual Property Department should monitor international trends and educate the public and e-businesses about links, particularly in cases where their websites have links to foreign websites.

Fifth, the Thai CA 1994 should follow the EU Copyright Directive by modifying "reproduction" under Section 4 paragraph 13 to include "temporary reproduction" or transient copies in the RAM of the computer.

In addition, concerning defences to copyright infringement, the Thai CA 1994 should also follow the EU Copyright Directive by allowing "temporary reproduction" in the RAM. There should be an additional provision in the Thai CA 1994 providing that, unless clearly prohibited by the copyright owners either in the form of a statement or an encryption, temporary reproduction in the case of normal viewing of the works on the Internet is allowed. Finally, since new technological developments such as file sharing programs without a central server, aggressive advertisements and so on are testing traditional copyright concepts, the Thai Intellectual Property Department should monitor these developments, learn from other jurisdictions’ experience and study their implications for Thai copyright law.