Thailand Law Journal 2014 Spring Issue 1 Volume 17

The same approach can also be seen in Sillitoe v. McGraw-Hill Book Company¹⁷⁵ , where the defendant contended that the fair dealing exception for private study is not limited to the actual student and if a dealing is fair and for the purposes of private study, then the exception applies whether the private study is one's own or that of someone else. The claim in this case was that the dealing was for the purpose of private study of the examinees and students who would acquire the notes. However, the court referred to the University of London case and then rejected the defendants' argument by stating that they could not avail themselves of the fair dealing exceptions for research and private study because they were not engaged in private study or research but were merely facilitating this for others.

The defendant in McGraw-Hill also contended that the study notes did not constitute infringements of copyright because there had not been a substantial reproduction of any of the works studied. The court observed that 'substantiality is a question of fact and degree determined by reference not only to the amount of the work reproduced but also to the importance of the parts reproduced'.¹⁷⁶ After reading the quoted extracts from the original work, the court found that the notes of the defendant reproduced substantial parts of the original work, so it concluded that the defendants' activities constituted an infringement of copyright. It is clear that taking large extracts from a work and criticising only some of them may be unfair and make the dealing an infringement rather than a permitted act.¹⁷⁷ A similar approach can also be found in Hubbard v. Vosper¹⁷⁸ , where the court ruled that reproducing any substantial part in any material form is an infringement unless the criticism was sufficient enough to make the taking of substantial extracts of the copyright materials fair dealing. The court was of the view that although the defendant had taken very substantial parts of the plaintiff's works and put them into his book, the defendant's treatment of them was for the purpose of criticising, so it could amount to fair dealing within the UK copyright law. These cases not only illustrate that the third party who merely reproduces copyright work for sale to students and researchers for purpose of private study could not claim fair dealing but also indicate that if the parts taken are substantial, the defendant will be guilty of infringement of copyright unless he can make the defence that his use of them is fair dealing.

It is important to note that the third party or photocopy shops are also subject to the prohibition on multiple reproductions. Pursuant to section 29(3) of the CDPA 1988, copying by a person other than researchers or students themselves is not fair dealing if the person who makes the copy knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose. In the light of section 29(3)(b), it is likely that lecturers or instructors cannot rely on the fair dealing exception for research and study when they make multiple copies of a copyright work for their students, since the wording of this provision seems to ensure that the reproduction of multiple copies cannot be justified by research and private study exceptions.¹⁷⁹ This approach was emphasized again in the Universities U.K. case¹⁸⁰ , where the Copyright Tribunal stated:

'Materials provided by the staff for distribution to a number of students at more or less the same time would not in general amount to fair dealing because of the exception in section 29(3)(b). If a lecturer were to instruct every member of his class to make copies of the same material, we consider that this too would not be fair dealing.'¹⁸¹

The Tribunal also noted that the mere distribution of a reading list without any advice or instructions to photocopy those materials will not infringe copyright at all. But it does not allow lecturers and instructors to copy on behalf of their students, and also prohibits the making of multiple copies for others. Similarly, the British Academy also makes clear that any commercial copying or multiple copying for students in universities and colleges including course packs are not within the scope of the fair dealing exception for study and thus requires a copyright licence, such as those offered by the Copyright Licensing Agency (CLA) or the publishers.¹⁸² It also indicates that in order to fall within the scope of the fair dealing exception for private study, such use must be for one's own study and not that of others, so that producing a school study book which has extensive quotations from a novel was not justified under this exception.¹⁸³  

Further, both the guidelines and the decision of the UK Copyright Tribunal also make clear that the mere reproduction of entire textbooks cannot be justified under copyright exceptions. For example, the guideline published by the British Copyright Council is clear that the copying of whole articles in periodicals or whole books will be unfair.¹⁸⁴ Similarly, the Copyright Tribunal in the Universities U.K. decision pointed out: 

'Clearly, a student who takes a photocopy for the purposes of his course of a relevant article, or a relevant short passage from a book is likely to do so in circumstances which amount to fair dealing. At the other extreme, if he were to take a photocopy of a whole textbook, we think that his dealing would not be fair, even if done for the purposes of private study.'¹⁸⁵

other words, the photocopy shops that reproduce copyright materials for sale to students can escape from any copyright infringement as long as they have the order form to prove that they were ordered by the students to reproduce such materials. Applying the UK approach in the Thai copyright system can limit the ability of the third parties or photocopy shops in making multiple reproductions or copying of entire textbooks for sale to the students. The Thai Government should follow the UK approach. 

5.2.2) The insertion of a clear limitation to the exception for the library

This Article also recommends that a clear limitation and prohibition on multiple reproductions should be inserted into the exception for libraries in section 34 of the Thai CA 1994. Currently, the Act only provides one exception for libraries in section 34, which allows the librarian to reproduce copyright materials in two aspects. First, section 34(1) confirms that the librarian can reproduce a copyright work for use in the library or another library provided that the purpose of the reproduction is not for profit and section 32 paragraph 1 is complied with. Second, section 34(2) allows the librarian to reproduce part of a copyright work for another person for the purpose of research and study provided that section 32 paragraph 1 is complied with and the purpose of such reproduction is not for profit. This article will only focus on section 34(2) because it is closely related to the education sector since it enables a librarian to copy materials for students or users' research and study.
There is no clear limitation as to the numbers of reproductions by librarians and no clear prohibition on multiple reproductions by the librarian in section 34(2). The section allows a reasonable reproduction of part of a work for another person for the benefit of research or study to be done by the librarian but there is no judicial decision analysing the meaning of the phrase 'reasonable reproduction of part of a work' and also no definition of any one of these terms. The question arises of what amount can be considered as 'reasonable reproduction in part of a work'. Another problem is that section 34 also requires such reproduction by a librarian to comply with the two conditions in section 32 paragraph 1. This means that the main question is to determine whether the amount of reproduction or multiple reproductions by librarian is in conflict with a normal exploitation of the copyright work and whether it would unreasonably prejudice the legitimate interest of the owner of copyright. If so, then it will be prohibited by section 34. However, it is very hard to determine this question because the two conditions in section 32 paragraph 1 are problematic, as previously discussed, so by relying on the two conditions, the exception for libraries in section 34 is faced with the same problems as other educational exceptions in the Thai CA 1994. As already mentioned in the previous section, there is no definition and judicial decision on the meaning of the two conditions. Also, the Thai courts in different cases have set different standards about the amount of permissible reproduction under the copyright exceptions, so it is difficult to know what amount of reproduction should be considered as unreasonable prejudice to the legitimate interest of the copyright owners or as conflicting with a normal exploitation of the copyright work. As a result of this unclear exception and the resultant lack of clear limitations, copyright materials can be freely reproduced and distributed without the appropriate limitations. This problem illustrates again that the economic interests of copyright owners are not effectively protected by the Thai CA 1994.