Thailand Law Journal 2014 Spring Issue 1 Volume 17

Draft Amendment to the Copyright Act

The Draft Amendment to the Copyright Act is the most recent legal measure proposed to fight camcording piracy in movie theaters in Thailand. The Draft Amendment to the Copyright Act was introduced by the Department of Intellectual Property and its principle was approved by the cabinet on February 22, 2012. Then the Council State scrutinized its substance and it was approved by the Cabinet on January 21, 2013. Hopefully, Parliament will pass it in the near future.

The significant measures proposed by the Draft Amendment are described as follows:

It completely prohibits any person from raising a defense to copyright infringement for illegal camcording in movie theaters by adding new content. As stated in second paragraph of Section 28 of the Copyright Act B.E.2537:

Section 4 “The following content shall be added as second paragraph of Section 28 of the Copyright Act B.E. 2537:
"Reproduction adaptation or communication to the public of cinematographic work, which is considered a copyright infringement under the preceding paragraph, made in a movie theater within territory of Thailand during a period of one year starting from the day when the first showing of such work is made in domestic movie theaters is not subject to Part 6: the Exemption of Copyright Infringement.”

As described earlier, in many cases where individuals are charged with copyright infringement, such as illegal camcording in movie theaters, they often exploit the exception to copyright infringement called "fair use" under Section 32 of the Copyright Act to protect themselves from liability. Common defenses are that the pirated film was intended for personal use, not for commercial purpose, and that it is only a very small portion of the whole film.

The doctrine of fair use was designed to ensure that the rights of authors are balanced with the interest of the public in the free flow of information. It serves to stimulate the dissemination of information and knowledge equitably and reasonably. It allows people, in certain circumstances, to use copyrighted works in a way the copyright owner does not authorize or might even forbid if asked. However, in the case of illegal camcording in movie theaters, the doctrine of fair use is often claimed for a purpose that is inconsistent with the underlying objective of the doctrine. At the entrance of movie theaters nowadays, there is a warning which explicitly states that recording the film is strictly prohibited. Also, the warning even shows on the movie screen. With such warnings, people know or should have known that camcording in movie theaters leads to copyright infringement. Therefore, if they do not follow the rules and conduct camcording piracy in movie theaters for any purpose, it implies that his or her act contains bad faith. For these reasons, they should not be protected under the fair use exception for copyright infringement.

Nevertheless, it is difficult for the injured copyright owner and the court to prove the intention of such a person whether the defense raised is true or not. Particularly, for criminal prosecution under copyright law mens rea, willful infringement, is the most important factor in deciding whether the action constitutes copyright infringement or not. In order to lessen the burden of proof, this provision intentionally and entirely cuts off the fair use exception to copyright infringement to prevent anyone from taking advantage of the exception. However, this may raise the questions whether the proposed legal measure destroys the basic principle of copyright law, because the doctrine of fair use has been universally accepted, or whether it conflicts with the TRIPs Agreement, since Thailand is a member of the TRIPs Agreement and Article 13 states that:

“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”

Based on the above, it seems that Article 13 of the TRIPs Agreement only provides a general rule of limitation by setting out three conditions: (1) the limitations and exceptions are confined to certain special cases; (2) they do not conflict with a normal exploitation of the work; and (3) they do not unreasonably prejudice the legitimate interests of the right holder. It does not state that every country party to this Agreement must implement exceptions to the exclusive rights into their own copyright law. Therefore, this proposed legal measure under the Draft Amendment to the Copyright Act does not conflict with the Article 13 of TRIPs Agreement.

The principle of the Copyright Act is influenced by anti-camcording laws in countries like the United States of America, Canada, the Philippines, and especially Japan. As it has been studied Japan's Law for the Prevention of Stealthy Recording of films explicitly prohibits the wrongdoer from raising the fair use exception to copyright infringement in cases of illegal camcording in movie theaters, but only for a limited period of time. The Draft Amendment to the Copyright Act contains the same principle; the fair use exception to copyright infringement shall not apply to illegal camcording in movie theaters that were made within a period of one year from the day the first showing was made in domestic movie theaters. Because' one year is the time it takes the movie maker or theater to reach the break-even point for that movie the law specifically provides strong protection to the movie within this period of time. The draft only provides that illegal camcording within a period of one year, starting from the first day that the movie is shown in domestic theaters, is not subject to “Part 6: Exception of Copyright Infringement,” it does not mean that Section 28 paragraph two states that illegal camcording in movie theaters is an offense separate from copyright infringement. In other words, it does not specify that the provision on illegal camcording in movie theaters is inconsistent with the principle of drafting this copyright law.

• It provides a severe criminal penalty for any person who forces, threatens, induces,  encourages, consents or uses another person to commit illegal camcording in movie theaters by adding the new content in Section 73/1 of the Copyright Act B.E. 2537:

Section 5 “The following content shall be added as Section 73/1 of the Copyright Act B.E. 2537:
‘Any person who forces, threatens, induces, encourages, consents or uses the person to commit an offence under paragraph two of Section 28 shall be sentenced twice of the penalty specified for that offence.’”

The stronger penalty will help eliminate the headman who is the key mastermind behind the movie camcording piracy network and cut off an important channel to pirating movies. Nevertheless, Section 5, which has added content, such as Section 73/1, specifies people who force, threaten, encourage, consent or use other people to conduct activities must be sentenced to twice the punishment specified for that offense by mentioning the action according to Section 28 paragraph two. This raises the question, if the illegal camcording was conducted after the period of one year elapsed, what would be the liability of the people who force or threaten any person to commit such offence?

Furthermore, comparing the Draft of Anti-Camcording Act and the Draft Amendment to             the Copyright Act, the Draft Amendment to the Copyright Act does not have any provisions concerning the power of officials and the duty of movie theater operators. In the author's view, since the power of officials is provided under Section 67 of the Copyright Act, it is not necessary to readdress this issue. Regarding the duty of movie theater owners to announce that camcording in movie theaters is illegal, it is necessary to consider certain aspects further. For example, whether or not it is appropriate to do so, which agencies will be responsible for ensuring movie theater operators comply, or will it, in cases where related authorities are specially identified by law, lead to a wrongful conduct e.g. bribery. As the anti-camcording law benefits both movie theater operators and the public at large, it would be better to encourage them to protect their own interests rather than imposing a legal duty with consequences for non-compliance.

Based on the above, the existing provisions under the Copyright Act can be directly applied to illegal camcording in movie theaters. However, the author agrees with including provisions prohibiting the fair use exception to copyright infringement for illegal camcording in movie theaters and the imposition of a strong penalty for any person who forces, threatens, induces, encourages, consents or uses another person to commit an offence as specifically provided in the Draft Amendment to the Copyright Act. These two problems are major factors in the illegal camcording circle and the additional provisions as aforementioned will considerably improve the efficiency of legal mechanism used against illegal camcording in movie theaters.

Conclusions and Recommendations

The existing provisions under the Copyright Act can be directly applied to illegal camcording in movie theaters, creating a specific law for illegal camcording in movie theaters is unnecessary and it would overlap with the Copyright Act. In other words, in order to improve the efficiency of enforcing laws against illegal camcording in movie theaters, the Copyright Act should be revised.

In order to effectively eliminate copyright infringement behavior, a strong arid strict criminal sanction is required because people fear criminal punishment more than civil liability. Also, since courts in Thailand are very conservative when awarding damages to the injured party, it may not be worth the cost a copyright owner has to pay for the litigation process. As highlighted in this thesis, there are usually headmen who hire or use a group of people, especially young people, to conduct illegal camcording in movie theaters, instead of doing it on their own. Therefore the Copyright Act should be amended to create strong criminal sanctions by imposing harsh penalties, both a fine and imprisonment, for the headmen. This punishment may be implemented by adding another section or amending part of an original section of the Copyright Act. As the Draft Amendment to the Copyright Act does, it should clearly state that whoever forces, threatens, induces, encourages or uses another person to commit an offence under the Copyright Act shall be sentenced to twice the penalty specified for that offence. The goal of this anti-camcording provision is to cut off the primary root of the illegal camcording problem as well as to bring the real criminals to justice. Furthermore, the law should punish those who influence another person to commit illegal camcording irrespective of the age of such person who is influenced.

Additionally, since most copyright infringers, especially in the case of illegal camcording in movie theaters, unreasonably and wrongfully take the benefit of the fair use exception to copyright infringement to protect themselves from liability, they should not be protected by this exception. Agreeing with the Draft Amendment to the Copyright Act, it is strongly recommended that a new provision should be added into the Copyright Act that states that the fair use exception to copyright infringement shall be absolutely forbidden for cases of copyright infringement of cinematographic work conducted in movie theaters. This would lessen the burden of proof on the court and increase the opportunity for the copyright owner to bring the infringer to justice.

Nevertheless, it must be remembered that the legislation itself does not guarantee that illegal camcording in movie theaters will be wiped out from our society. To effectively battle with this problem, cooperation and responsibility from all related parties, both governmental and private sector, is necessary. Officials must perform their duties to their full capability and attention in copyright infringement cases. Also, movie theaters must take measures against illegal camcording, such as profiling and monitoring known members of camcording syndicates, installing closed-circuit television (CCTV) cameras and using night vision goggles, and take additional security measures, especially for the initial exhibition of a newly released movie, as well as a training program for employees to increase the effectiveness of detection and aide the investigation process regarding evidence.

Last but not least, educating people about copyright and raising awareness of the strong link between encouraging creativity and respect for the work of copyright owner is most needed. Social measures should be taken by making a policy or campaign about anti-camcording in movie theaters so that the public would see the scope of the problem and to accept that illegal camcording in movie theaters is a crime that seriously affects our daily life, as well as the economy and commerce of the country. Consumers themselves must have enough awareness and morality to not consume pirated products, because without demand there would be no supply and this would eventually eliminate the problem of illegal camcording in movie theaters from our society.