Taking on the Copyright Pirates in Thailand

Copyright 2001
Edward J. Kelly Ekelly@tillekeandgibbins.com
Hassana Chira-aphakul Hassana@tillekeandgibbins.com
Tilleke & Gibbins International Ltd.
www.tillekeandgibbins.com

Despite one of the most aggressive legislative schemes for the protection of intellectual property rights in any developing nation, Thailand has remained on the United States' Special 301 Watch List since 1994, primarily because of dissatisfaction with Thailand's political will in respect to strict and meaningful enforcement of its IP laws. This paper will outline the present challenges faced by owners of copyrighted works and the legislative framework available for addressing widespread infringement of such works in Thailand.

Introduction to Thailand: Challenges to Enforcing Copyright

The Kingdom of Thailand is a nation of approximately 62 million people. The government is a constitutional monarchy with 76 administrative divisions. His Majesty King Bhumibol Adulyadej is the Chief of State, while Prime Minister Thaksin Shinawatra is the head of the government. The Thai legal system is based on a civil law system with some common law influences. The Central Intellectual Property & International Trade Court (IP&IT Court), introduced in 1997, has exclusive jurisdiction over disputes involving intellectual property. Thailand is a signatory to the Berne Convention and is a member of WIPO and WTO but is not a member of the Patent Cooperation Treaty, Paris Convention, nor the Madrid Protocol. The literacy rate in Thailand is over 93%, and there are approximately 24.7 personal computers per 1000 people in the country.

Primarily because of the pressure on Thailand's export-oriented economy due to its inclusion on the Special 301 Watch List, there is presently no IP-related issue that receives more media or government attention in Thailand than the issue of piracy of copyrighted works. Primary attention is devoted to the illegal reproduction and distribution of software, film and music content. Literally every week, there is a press release or media report about actions taken by local and international industry groups to combat the piracy epidemic in Thailand. Among the most active groups engaged in the anti-piracy campaigns are the Business Software Alliance ("BSA"), International Federation of the Phonographic Industry ("IFPI"), and Motion Picture Association of America ("MPA"). Domestic industry groups active in the enforcement of copyright include the Association of Thai Software Industry ("ATSI"), Grammy Entertainment, and the Thai Recording Industry Association ("TRIA").

A. Retail Problem

Even a casual observer surveying the Thai market can easily find areas flooded with large amounts of pirated DVDs, CDs, and VCDs sold for between 100-200 Baht in Bangkok, including Sukhumvit, Silom, Pratunam, Ramkhamhaeng, Banglumpoo, and Patpong (all tourist areas of Bangkok). Of course, there are notorious Bangkok shopping centers with shops openly and brazenly selling all manner of pirated goods, such as Pantip Plaza, Future Park Rangsit Department Store, Seri Center Department Store, and Seacon Square Department Store. Finally, one has to look as well at the yards of freight forwarders, consolidators, and carriers for those pirated products exported by land, sea, and air.

B. Scope of the Manufacturing/Supply Problem

Thailand is home to at least 100 known plants for optical media production (and many more underground facilities) with over 200 known manufacturing lines and mastering machines. With this capacity, Thailand can generate over 1 billion discs every year. Clearly, because the Thai domestic market has a legitimate need for only 15-20 million genuine copies in VCD, DVD, and CD-ROM format, the Thai domestic market is flooded with cheap pirated discs. Thailand also rivals China, Taiwan, and Hong Kong as a leading export source of pirated content.

According to the most reliable statistics available, the piracy rate for entertainment software in Thailand stood at 98% at the end of 2001, while business software applications registered a 76% rate, motion pictures 60%, and music 45%. The total U.S. market loss attributed to copyright piracy in 2001 has been estimated at more than US$136 million.

Part 2