Thailand Law Journal 2014 Spring Issue 1 Volume 17

The educational exceptions are also a cause of these problems because as will be shown below they make it more difficult to enforce the copyright law and protect the economic interests of copyright owners in practice. In this vein, the Thai copyright law and its exceptions cannot effectively protect the economic interest of copyright owners because of several factors: 1) the unclarity and ambiguity of the educational exceptions under the Thai CA 1994; 2) the current approach of the Thai Court to the exceptions has weakened the copyright protection regime in the sector; These factors not only make copyright protection and its exceptions ineffective in safeguarding the economic interests of copyright owners but also undermine the goal of copyright law, which is to encourage greater creativity.

1) The ambiguity of the educational exceptions under the Thai CA 1994 

The first factor which makes the protection of economic interests of copyright owners ineffective is that the educational exceptions in the CA 1994 are ambiguous and unclear. One of the main problems comes from the two conditions in section 32 paragraph 1 which is the mainspring of the whole body of exceptions under the CA 1994. Paragraph 1 says that an act against a copyright work of the copyright owner should not be regarded as infringement of copyright if two conditions are met. The first condition is that the action or reproduction must not conflict with a normal exploitation of the copyright work by the copyright owner, while the second condition is that the action or reproduction must not unreasonably prejudice the legitimate right of the copyright owner. These two conditions are very important because all educational exceptions in the list of permitted acts in section 32 paragraph 2 (such as the exceptions for research and study in paragraph 2(1); for teaching in paragraph 2(6); for educational institutions in paragraph 2(7)¹⁸ ; and for use in examinations in paragraph 2(8); as well as the specific exception for use as reference in section 33 and for library use in section 34) require the two conditions to be satisfied together with other additional conditions in order in order to be exempted from copyright infringement under these sections.

For example, paragraph 2 of section 32 stipulates: 'subject to paragraph one, any act against the copyright work in paragraph one is not deemed an infringement of copyright; provided that the act is one of the following: (1) research or study of the work which is not for profit...'.¹⁹ The term 'subject to paragraph one' requires that the two preconditions in paragraph 1 are to be satisfied together with the additional condition that such uses must be for the purpose of research or study which is not for profit in order to be exempted. The term 'subject to paragraph one' also applies to the rest of the educational exceptions in the list of permitted acts in section 32 paragraph 2. Similarly, most specific exceptions in the CA 1994 require the two conditions in section 32 paragraph 1 to be satisfied together with other additional conditions in order for the acts to be exempted under these specific exceptions. For instance, section 34 provides that 'a reproduction of a copyright work by a librarian...is not deemed an infringement of copyright; provided that the purpose of such reproduction is not for profit and Section 32 paragraph one is complied with...'.²⁰ Similar language requiring the two conditions in section 32 paragraph 1 to be satisfied together with the additional conditions can also be found in exception for use as reference in section 33 as well. Therefore, if the two conditions of section 32 paragraph 1 are unclear, this will normally affect the operation of the specific exceptions which rely on them.

Before 1999, there was a debate on the issue of whether section 32 paragraph 1 should be regarded as a mere preamble or as enforceable pre-conditions.²¹ This issue was solved by several decisions of the Supreme Court and the IP Court, which held that these two conditions are enforceable preconditions and not a mere preamble. For example, in the Supreme Court Decision No. 1908/2546 ²² , the defendant copied around 30 out of 150 pages of the plaintiff's literary work, put them into his book, and published them for commercial purposes. The defendant claimed that his action could be exempted from copyright infringement by relying on the exception for the use as reference in section 33 and the exceptions in the list of permitted acts in section 32 paragraph 2. The court held that in order to be exempted under the exceptions in the list of permitted acts or specific exception, such use must also satisfy both the two conditions in section 32 paragraph 1 as well as other additional conditions in those exceptions.

exceptions in the list of permitted acts in section 32 paragraph 2 or such use must fall under use as reference in section 33. Second, the use of the copyright work must not conflict with a normal exploitation of the copyright work and third, such use must not unreasonably prejudice the legitimate rights of the copyright owner. This approach of the court is consistent with the wording of section 32 paragraph 2 and section 33 which clearly require the two conditions in section 32 paragraph 1 to be satisfied together with other conditions in the provisions. 

The court in this case was of the view that the defendant's action did not fall into any of the exceptions in the list of the permitted acts in section 32 paragraph 2 and also did not fall under the specific exception for use as reference in section 33 (which allows the reasonable recitation, quotation, or reference from a copyright work with an acknowledgement of the ownership of copyright in such work to be exempted from infringement of copyright). The court offered two important reasons for its conclusion. First, the defendant had copied a substantial part of the original work: the amount of the copying was about 30 out of 150 pages of the original work which was a very large amount. Second, despite referring to the plaintiff and his works in the bibliography of his book, the defendant did not give any reference or acknowledgement to the plaintiff in any other part of the book; especially there was no reference or acknowledgement in those 30 pages which were taken from the plaintiff's book. Thus, it was impossible for readers to know which part of the defendant's book was written by the plaintiff. The court held that referring to the plaintiff and his book in the bibliography only is not sufficient to be regarded as an acknowledgement of the ownership of copyright in original work.

After analyzing the conditions in section 33, the court further stated that the publication and sale of the defendant's books did not satisfy the two conditions in section 32 paragraph 1 because such publication and sale of the defendant's book obstructed the ordinary profit-seeking of the copyright owners and adversely affected the legitimate right of the copyright owner in an excessive manner. This is because the defendant's book was sold in the same market channels to the same group of consumers as the plaintiff's book. Hence, the publication and sale of the defendant's books are clearly in competition with the plaintiff's book. The court, therefore, concluded that the defendant's act cannot be exempted from the infringement of copyright under section 33.

This decision implied that the two conditions of section 32 paragraph 1 are not mere preamble but rather enforceable preconditions of the exceptions. Thus, if the two conditions are unclear and ambiguous, it could result in uncertain scope of the exceptions and infringement which makes it more difficult to enforce the copyright law. It is also important to mention the IP Court Decision No. 784/2542 ²³ and the IP Court Decision no. 785/2542 ²⁴ where the court outlined several problems in relation to the two conditions in section 32 paragraph 1. In the decision no. 784/2542, the three American publishers, McGraw-Hill, Prentice-Hall and International Thomson Publishing, were joint plaintiffs with the public prosecutor. The plaintiffs claimed that the defendant, who ran a shop offering a photocopy service, infringed their copyrights on the textbooks and requested a heavy penalty to be imposed on the defendant for infringing copyright. The defendant admitted unauthorized reproduction but relied on the exception for research and study in section 32 paragraph 2(1) as an agent of the students who were using the materials purely for private research and study without making profit from them.

The court held that in order to be exempted under the exception for research and study, the defendant must prove several matters to the satisfaction of the court. First, his act must not conflict with the normal exploitation of the work; second, it must not unreasonably prejudice the legitimate right of the copyright owners in an excessive manner. Third, his act must be for the purpose of carrying out research or study of the work and finally, not for the purpose of profit-seeking. In other words, the IP Court confirmed that the two conditions of section 32 paragraph 1 are not a mere preamble but enforceable preconditions.
The court indicated that, in order to determine whether such reproduction in this case is in conflict with normal exploitation and unreasonably prejudicial to the legitimate right of the copyright owner, it is necessary to consider circumstances case by case, which involves looking into the factors of quality and quantity. In determining the issue of whether the quantity of duplication in this case is a reasonable amount, the court acknowledged the difficulty in interpreting the two conditions because the lack of guidelines for reproduction of educational materials in Thailand. In this instance, the exception allows the reproduction of copyright works for research or study which is not for profit, provided that the two conditions in section 32 paragraph 1 are satisfied; but it does not have a clear limitation as to the amount of reproduction and does not prohibit multiple reproductions of copyright materials.