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

Enforcement of Copyright: Police Raids

Enforcement procedures are quite similar for actions taken under the Trademark Act, the Copyright Act, or the Penal Code. Steps include preliminary investigations to gather evidence regarding the infringement activity; presentation of the evidence to the police; raiding of the infringer's premises to arrest the infringer and seize infringing goods as evidence; and then either prosecution of the infringer and/or a private settlement negotiated between the infringer and the copyright owner in the case of copyright infringement.

A. Preliminary Investigations

Investigations would include both field investigations and investigations of public documents. The exact nature of the investigation would depend on the initial information known and the type of target.

Field investigations may include in-depth investigations into the activities of individual targets (where the target is a volume dealer of optical media, such as a manufacturer or distributor) or market surveys (in a campaign targeting numerous retail vendors of discs).

Investigations against particular individual targets may require pretense visits to the physical premises to observe the operation, verify the presence and quantity of infringing products, obtain samples, or to learn more about the distribution network for the infringing products. In some cases, undercover operatives may be placed inside a suspected infringer's business.

If the individual infringer targeted is a juristic person or limited partnership, a search is recommended at the Registry of Companies and Limited Partnerships, Ministry of Commerce, to obtain the company registration certificate, list of business objectives, and list of shareholders, all of which are publicly available. The registration certificate includes the name of the company, date of incorporation, registered address of the company, names of the Director(s), and names of persons authorized to bind the company. The list of shareholders gives the shareholders' names and addresses and shows their relative stakes in the company.

In a typical anti-piracy campaign under the Copyright Act against retail vendors of pirated optical media products, usually several adjacent targets would be raided simultaneously in a single retail center, with retail centers dispersed throughout Bangkok raided sequentially. To identify likely raid targets, it is generally necessary to rely on an investigator to survey the market, locate infringers, and obtain samples. The investigator's operatives routinely visit popular retail centers on behalf of several clients at the same time, and therefore can do this efficiently and effectively. In actions against multiple small retailers, such as street vendors, there is little point in trying to identify the principals of the business in advance.

B. Enlisting the Help of the Police

After the investigation has located infringers and yielded credible evidence of infringement, the police will be approached to enlist their help. In this context, it is useful to have a retired high-ranking member of the Bangkok Metropolitan Police Department on staff to act as a liaison/advisor to assist in securing cooperation from the police.

Before the police will conduct a raid on the premises of the infringing party, they must be convinced of the propriety of the proposed action in light of all the available information. If convinced, the police will proceed to obtain a search warrant from the IP&IT Court. The police are cautious in conducting raids because they could be held liable by the target for an illegal search and seizure. If the police feel there are, or might be, grounds for the target to contest the propriety of the police search, they will be reluctant to cooperate.

The police (and IP&IT Court, which will issue the search warrant) will usually require information concerning the location of the infringers, an estimate of the quantity of infringing goods that will be found, and samples of the genuine and infringing goods. They will also require a certified copy of the certificate of copyright registration and a consularized Power of Attorney from the copyright owner appointing someone from our firm and/or the investigator to take action on their behalf.

Costs will include fees of special agents/investigators for conducting raids; legal incentives and rewards given and accepted by the police and/or other officials (authorized under Thai law: "Title 38, Incentives and Rewards, Chapter 1, General Principles Concerning Payments and Rewards," and is contained in the regulations of the Police Internal Manual); rewards for informers; and naturally, legal fees.

Part 4