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

In the case of low-level retailers, the loss of stock, coupled with the fine or settlement payment, in the case of copyright infringement is likely to cause the infringer some hardship. The required undertaking may discourage the infringing vendor from repeating the infringement, and the copyright owner may use settlement monies to offset some of the cost of enforcement. Such legal action will also serve as a warning to other would-be infringers that infringing activity is risky. In fact, after a well-publicized series of raids, other infringers may be approached via "cease & desist letters" to submit to undertakings without initially taking legal action against them.

At the manufacturer/distributor level, enforcement depends to some degree on the presence of a retail market. Therefore, taking action at the retail level may have some upstream effect. This will not discourage manufacturing for export, however, so long as the goods can be manufactured here competitively and retailed elsewhere. As discussed above, prosecution may be considered as an option to settlement in such cases.

At the end-user level, we have found that these campaigns are extraordinarily successful and generate considerable revenues in the form of settlements and purchase of legalized software.

As an example of results that might be anticipated in a sustained retail raid campaign, our own efforts against retailers have netted recoveries for one client of well over Baht 4 million over the last two years in fines imposed by the IP&IT Court.

While raids of "end-users" or institutional business users of pirated unlicensed software (or in the case of entertainment software, mostly Internet gaming and cafe establishments) are logistically more complex and require considerable advance planning, successful raids pay big dividends. As an example, in the last year, end-user raids conducted by our raid team⁽³⁾ have yielded more than Baht 7 million for our clients in settlements arising from end-user raids. Moreover, a negotiated settlement will usually require the raid targets to commit in writing that they will purchase legal licensed software in the future, thus adding to the victims' sales revenue. However, one should not create false expectations for all end-user raid results: many "end-user" targets using pirated software may not be well-capitalized and will likely plead poverty in any attempt to settle with them after a successful raid.

In 2001, 1,293 cases of criminal copyright infringement were filed in the IP&IT Court, with the majority of cases being filed for infringement of cinematographic works and sound recordings. On December 18, 2001, the DIP and law enforcement authorities sponsored a well-publicized public destruction campaign where 127,256 seized fake goods with a value of more than Baht 38 million were literally steam-rolled in front of an audience of hundreds.

Part 6

(3) A typical raid team generally consists of one senior litigator to negotiate with the target's management, along with two to three lawyers to assist in observation and collection of evidence and to assure no spoliation of evidence, along with several investigators, several police officers from the Economic Crime Investigation Division (ECID), and several more IT professionals.