Thailand Law Journal 2014 Spring Issue 1 Volume 17

Another exception for the 'use for instruction' purpose in section 32(2A) which focuses on a literary, dramatic, musical or artistic work made available to the public also contains the condition of sufficient acknowledgment as in section 32(1). A work will be considered as having been made available to the public if it has been made available by any means, including the issue of copies to the public; communicating the work to the public; making the work available by an electronic retrieval system; performing, exhibiting, or showing the work in public and lending of copies of the work to the public.²⁴³

In order to be exempted from infringement of copyright under section 32(2A), copying in the course of instruction or of preparation for instruction must satisfy four conditions. First, such copying is fair dealing with the work and second, copying must be done by a person giving or receiving instruction. Third, the copying must be accompanied by a sufficient acknowledgement and, finally, the copying must not be done by means of a reprographic process. The exception for instruction in section 32(2A) is different from section 32(1) because section 32(2A) requires that such copies must be fair dealing with the work but does not require that such instruction must be for non-commercial purposes. Nevertheless, both section 32(1) and (2A) have some similarities since they do not allow a reprographic process to be used and both require that such copying be done by a person giving or receiving instruction with sufficient acknowledgement as requirement.

The use of copyright materials for assignments or examination is also allowed under the exception for use in examination in section 32(3) but again such use must be accompanied by a sufficient acknowledgement in order to be exempted. This exception guarantees that anything done for the purpose of an examination by way of setting the questions, communicating the questions to the candidates or answering the questions will not infringe copyright in such works provided that there is a sufficient acknowledgement.²⁴⁴ However, Burrell and Coleman found that there is one problem with the requirement of sufficient acknowledgement in this exception because it prevents examiners from testing whether students are able to identify the source of a quote.²⁴⁵ They observe that although there is a safeguard in section 32(3A) which indicates that sufficient acknowledgement can be dispensed with where it would be impossible for practical or other reasons, such safeguard does not provide much assistance because it is highly unlikely that it would be sufficient enough to bring a case within the category of when it would be impossible to provide an acknowledgement.²⁴⁶ This problem might also occur in Thailand, so the insertion of the requirement of sufficient acknowledgement into the exception for examinations in section 32 paragraph 2(8) of the Thai CA 1994 must be done together with the introduction of a better safeguard provision than that of the UK. Such safeguard provisions should indicate that no acknowledgement is required where the examination aims at testing whether students are able to identify the source of a material. Without such a safeguard, it is likely that the requirement of sufficient acknowledgement, which is going to be inserted into the exception for examination in section 32 paragraph 2(8), might cause problems in the Thai education sector as already happens in the UK.   

The exception in anthologies for educational uses in section 33(1) allows the inclusion in a collection of a short passage from a published literary or dramatic work to be exempted from copyright infringement, provided that the following conditions are met. The first condition is that such collection is intended for use in educational establishments and must be described in its title and in any advertisements issued by or on behalf of the publisher. Second, the inclusion must consist mainly of material in which no copyright subsists. This means that only inclusion or collection of works which were out of copyright can benefit from this exception: for example, out-of-copyright poetry.²⁴⁷ Third, such inclusion in section 33(1) should not involve more than two excerpts from copyright works by the same author in collections published by the same publisher over any period of five years.²⁴⁸ Finally, the collection must be accompanied by a sufficient acknowledgement in order to be exempted under this exception. Similar conditions of 'sufficient acknowledgement' can be found in the exception for recording by educational establishment in section 35 and exception for reprographic copying by educational establishment in section 36.     

The requirement of sufficient acknowledgement in these exceptions must be considered in parallel with the definition of the term 'sufficient acknowledgement' in section 178 of the UK CDPA 1988. This section defines the term 'sufficient acknowledgement' as an acknowledgement identifying the work in question by its title or other description and identifying the author.²⁴⁹ The UK Court of Appeal in the Pro Sieben case ruled that the definition of 'sufficient acknowledgment' requires the author to be identified before certain fair dealing defences are available and in absent of that identification the relevant fair dealing defences do not apply.²⁵⁰ Thus, in order to satisfy the requirement of sufficient acknowledgment, the defendants must prove to the court that they have identified both the copyright work and the author of that work. Nevertheless, the court made it clear that the author can also be identified by name, pseudonym, a photograph or any other means, which can convey to the relevant audience that the identified person is the author.²⁵¹ This definition requires only that the author must be identified, not the copyright owner if different.²⁵² Importantly, although the definition in section 178 requires that the acknowledgment must identify the work by its title or other description and identify the author, it also stipulates that there is no need to identify the author where the work is published anonymously and in the case of an unpublished work, where it is not possible for a person to ascertain the identity of the author by reasonable inquiry.

Most copyright exceptions under the CDPA 1988 allow reproduction only if such copies are accompanied by a sufficient acknowledgement.²⁵³ These provisions clearly illustrate that the UK exceptions recognize the moral right of the author to be identified as the creator more than those of the Thai law. The problem that the educational exceptions in the Thai CA 1994 do not support the protection of moral rights to be recognized as the author of the work can be automatically solved by inserting the requirement of 'sufficient acknowledgement' into the educational exceptions in list of permitted acts in section 32 paragraph 2. However, in order to allow the condition of sufficient acknowledgement to apply and function effectively, it is also necessary for the Thai Government to follow the UK approach by formulating the definition of the term 'sufficient acknowledgement' and then inserting it into section 4 of the CA 1994, which provides the definitions for copyright terms and phrases in the Thai CA 1994.

However, one difficulty in applying the UK approach is that the fair dealing for private study under the UK CDPA does not require the condition of sufficient acknowledgement to be satisfied, while the fair dealing for research will only apply where there is 'sufficient acknowledgement'. Therefore, the question raises of whether Thailand should insert the requirement of sufficient acknowledgement into both research and private study, or follow the UK approach by inserting such requirement into research only. Currently, the exception for research and study in section 32 paragraph 2(1) of the Thai CA 1994 is the same as the old UK provision before the implementation of the Copyright Directive in 2003. This old UK approach also linked the term 'research' and 'study' together in the same subsection with the same requirement. This is different from the current provisions of the UK where fair dealing for research was incorporated into a different subsection from the exception for private study.

This article recommends that Thailand should follow the UK approach by inserting the requirement of 'sufficient acknowledgement' into the exception for research, but not that for private study. This means that Thailand will have to reform its exceptions by creating the exception for research with the requirement of 'sufficient acknowledgement' in another subsection separated from the exception for private study. The main reason why the requirement of 'sufficient acknowledgement' should not be inserted in the exception for private study is because the exception for private study is of particular importance to students undertaking education in schools and universities, so it would be practically inconvenient for them to make sufficient acknowledgement every time they were studying and learning in order to improve or acquire knowledge. Importantly, even if students want to make sufficient acknowledgement of the authors and the works every time when they were studying, it does not appear how they make such sufficient acknowledgement while engaging in private study and to whom it is being made. As discussed in previous section, the problem of moral rights in Thailand is centred on Thai researchers, lecturers, or academic scholars who simply took large parts of the copyright works from various academic textbooks and then compiled them together as their own research or books without providing sufficient acknowledgment as to the authors or the original works.

The study of the UK fair dealing exception for research seems to offer the solution to this problem in Thailand because the fair dealing exception for research is intended to be available for justifying the reproduction and public distribution or communication of copyright materials.²⁵⁴ This is because the fair dealing for research is based on the idea that research is necessary for the creation of the new works and the condition of 'sufficient acknowledgement' is based on the fact that research materials including books, papers or articles are often circulated or published.²⁵⁵ The British Academy points that with the sufficient acknowledgement required by section 29(1), the fair dealing exception for research can cover quotation from research materials with appropriate citation in the publication of the researcher's results.²⁵⁶ Also, the use of the phrase with regard to the research exception must at least imply that the fair dealing for research can cover quotation from research materials in the publication of the researcher's results because only then it is possible to make acknowledgement meaningfully.²⁵⁷ If Thailand follows the UK approach, it means that researchers or lecturers who took the materials from several textbooks of other authors and compiled them together as their own research materials without providing appropriate citation or reference to the original sources can no longer rely on the exception for research in section 32 paragraph 2(1) of the CA 1994. This approach will also help to improve the protection of moral rights in Thailand. 

Although this proposed change can reduce the possibility of misuse of the exception for research and study by ensuring that the use for research purposes must always satisfy the condition of 'sufficient acknowledgement' in order to benefit from the exception for research, it may not be able to solve the problem entirely. This is because researchers can still rely on the unclear distinction between research and study. For example, they may argue that although such use cannot fall within the scope of the exception for research because no sufficient acknowledgment has been made, it may still fall within exception for private study, which does not require sufficient acknowledgement. Therefore, since the insertion of the requirement of 'sufficient acknowledgment' under the proposed exception is only limited to 'research', it would be necessary for Thailand to find some way of distinguishing this from the 'private study' to which it would not apply, or to set a clear boundary between them. But, this is not an easy task to achieve because even in the UK where the CDPA has long provided the fair dealing exception for research purposes, there is still no statutory definition of research and also no judicial justification or decision on the exact distinction between the term 'research' and 'private study'. The UK courts have found it unnecessary to distinguish or discuss them in detail but are likely to give both a fairly wide interpretation.²⁵⁸ This is the same as the Thai courts which have never distinguished between 'research' and 'study' in any decision. The reason for not doing so is because both terms are in the same subsection and thus, have the same requirements provided in section 32 paragraph 2(1) of the CA 1994, so there is no need for a Thai court to distinguish the difference between them. 

In order to distinguish both terms, it is necessary to consider law reports and academic opinions on this issue. For instance, the British Academy states that the distinction between research and private study is not always clear, but at least one distinction implicit in the present law is that research envisages an end result or a production embodying the results of the research, regardless of whether it is published or not.²⁵⁹ It explains that research is a process of search or investigation undertaken to discover facts and reach new conclusions by the critical study of a subject or as a systematic investigation into and study of materials, while study is about 'the application of the mind to the acquisition of knowledge, or reading a book or text or other document with close attention'.²⁶⁰ Many scholars also attempted to distinguish the terms. For example, Bently described the difference between these two concepts that research is seen as a process which is intended to lead towards a particular result, conclusion, decision, or answer to a problems, whereas study might be for the user's own benefit.²⁶¹ Also, a major distinction between the exceptions is that study must be private but research may not be.²⁶² In brief, these statements illustrate that research is mainly different from study because it must have the end result or conclusion which involves the production of new ideas and may not need to be private, whereas private study might represent only the consideration and acquisition of existing knowledge and needs to be private.

Although many scholars have theoretically made clear the difference between research and private study, a clear boundary between the two terms may not be achieved easily in practice. The difficulty in distinguishing the two terms is that private study in the sense of simply considering material may at some points mature into research if the study is being carried out on the material and results in some new idea or product at the end.²⁶³ The UK IPO also recognized this difficulty when considering the question of whether or not clear boundaries needed to be set between research and private study.²⁶⁴ It stated that 'no attempt should be made to distinguish between them' because 'there was considered to be an overlap between informal and formal education and one may lead to the other'.²⁶⁵ It concludes that 'we do not believe it is practical to treat research and private study separately' because 'the responses generally confirmed the difficulties of trying to distinguish between the two activities, and that in practice there is no specific boundary which delineates them'.²⁶⁶ Since the boundary between the two terms is still unclear in practice and problems might originate from the lack of such a clear line between these terms, this Article recommends that the effect of such problem be narrowed down by providing a guideline which indicates what should be considered as 'research' and what should be considered as 'private study'. Such guideline can at least give the users a general idea about the difference between both terms as in the Guideline of the British Academy. For example, the guideline should clearly explain that 'private study' will only cover 'private uses' of copyright materials for acquiring knowledge and understanding for one's own benefit but 'research' will cover the use of copyright materials for making arguments or producing end results regardless of whether such use is private or not.