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

Legislative Framework for Addressing Copyright Piracy

Notably, at the time of this writing, there is as yet no legislation in Thailand designed to control the production of optical media products. The Thai legislature has drafted a Bill for the Control of CD/Optical Disc Production, but to date the Bill has not yet been passed.

The Thai Copyright Act provides criminal penalties, including fines and imprisonment, for infringement of copyrighted works. The Department of Intellectual Property ("DIP"), under the leadership of Director-General Yanyong Puangrach, is the government agency (operating under the Ministry of Commerce) charged with developing policy and enforcement efforts directed toward the piracy problem. As outlined more fully below, the Copyright Act provides for confiscation of infringing goods and permits the copyright owner to seek to permanently enjoin an offender from repeating the offense.

Notably, the Copyright Act also provides that 50% of the fines levied by the Court against the offender in criminal cases at time of judgment will be payable to the copyright owner⁽¹⁾. In addition, at the time of this writing, the Copyright Act provides that the copyright owner may withdraw the complaint filed against an infringer and settle the case privately. The settlement in this regard may take place at any time during the criminal proceedings but before judgment is rendered.

Criminal action against infringers of copyrighted works that are protected in Thailand⁽²⁾ may be taken under the penalty provisions of the Copyright Act (Sections 69-77). The four most important enforcement/penalty provisions for copyright owners are Sections 69, 70, 75 and 76.

Section 69 states, "Any person infringing the copyright or the performer's rights under Section 27, Section 28, Section 29, Section 30, or Section 52 shall be liable to a fine of 20,000 Baht to 200,000 Baht."

Section 70 states, "Any person infringing a copyright under Section 31 shall be liable to a fine of 10,000 Baht to 100,000 Baht.

If the violation under paragraph one is committed for commercial purposes, the offender shall be liable to imprisonment of three months to two years or a fine of 50,000 Baht to 400,000 Baht, or both."

Section 75 states, "All articles made in or imported into Thailand which constitute an infringement of copyright or performers' rights pursuant to this Act, and are owned by the offender under Section 69 or Section 70, shall become the property of the owner of the copyright or performer's rights, whereas all articles used for committing a violation shall be forfeited."

Section 76 states, "One-half of the fine paid pursuant to a judgment of a court shall be payable to the owner of the copyright or the owner of performer's rights, but the payment shall not be prejudicial to the right of the owner of the copyright or the owner of performer's rights to sue for damages which are in excess of the amount of fine received by the owner of the copyright or the owner of performer's rights.

Part 3

(1) One issue raised by this provision of the Copyright Law is that the IP&IT Court at this time requires that checks be made payable to the named copyright owner, and there is as yet no rule or law that would allow payment of the check directly to the copyright owner's legal representative or industry representative. For example, if an Autodesk software title was found to have been illegally reproduced in violation of the Copyright Act during a raid conducted at the behest of the industry representative group, Business Software Alliance, at present, any half-fine would be paid to Autodesk directly, and not to its attorney and not to BSA. This creates a practical problem in that Autodesk would have to have a bank account set up in Thailand for purposes of receipt of deposits.

(2) There is no requirement that a copyrighted work be recorded or registered in Thailand to be protected, but there is a mechanism under Thai law for recordation to occur. Recordation would prove helpful in any litigation as evidence of ownership of the copyright.