Thailand Law Journal 2014 Spring Issue 1 Volume 17

The court observed that the user may reproduce the works for the purpose of research or study under the exceptions without having to obtain permission from the copyright owners. In such case the printing organizations or copyright collecting societies (CCS) in other countries will solve the problem of duplicate quantity by fixing an appropriate figure in the duplication through the guideline²⁶ ; for example, one article from a journal or one chapter from a book, or no more than 10% of the whole.²⁷ However, since there is no guideline or any agreement on the amount of duplication between publishers and users in Thailand, the court suggested that a clear guideline or agreement to define a certain amount of the duplication is needed but such guideline must not affect the high-level education of the nation and the development of the country, particularly where the price of books is not reasonably relative to the population's income. It is important to note that there was no guideline in Thailand when this decision was issued by the IP Court in 1999 since guidelines for education use were released by the DIP and distributed to students, lecturers and the general public for the first time only in 2007.²⁸ Thus, the nature of the problem relating to guidelines seems to be different from the time when this decision was issued, so the recommendations made by the IP Court in this decision can no longer solve the current problem. In this vein, the main problem when this decision was issued was the lack of a guideline for educational use, but the problem now is that the guidelines of the DIP are not widely recognized or used by the interested parties in the Thai education sector such as copyright owners, users, libraries and educational institutions because they cannot reflect the interest of these parties. The issues of the guidelines will be discussed in the next section.    
Although these decisions acknowledged the problem about the difficulty in interpreting the two conditions and the lack of guidelines, they did not clarify the meaning of the two conditions in section 32 paragraph 1. Also, they did not consider or answer the question of whether the two conditions in section 32 paragraph 1 can be applied as a general exception on its own. Thus, this issue is still under debate in Thailand. The court in these decisions only said that the two conditions are enforceable conditions but did not state that these two conditions must only be applied together with other specific exceptions and cannot be applied alone as a general exception. In most cases, it is unusual to find the defendant who chooses to rely purely on the two conditions in section 32 paragraph 1 because they do not know whether the two conditions can be applied as a general exception or not. With such doubts, most defendants would normally prefer to rely on the exceptions in the list of permitted acts in section 32 paragraph 2 or specific exceptions in section 33 to 43, which normally require such use to comply with the two conditions together with other additional conditions. Currently, there is no judicial decision where the court has determined on this issue yet. This ambiguity and unclear scope of the exceptions makes it more difficult to enforce the copyright law and protect copyright works in the Thai education sector, especially where copyright materials are made available in the mass education market. Thus, these unclear exceptions need to be clarified in order to ensure that the scope of copyright exceptions and infringement are clear and certain. Such changes and clarifications of these provisions are necessary in order to ensure that the copyright owners can get an economic return on their investment. The issue of whether or not the two conditions in section 32 paragraph 1 should be enforced alone as a general exception will be further discussed in the next section.

This seems to be consistent with the recommendation of the IIPA, which stated that the unclear educational exceptions in section 32 of the CA 1994 are the main problem hindering enforcement of copyright protection in Thailand.²⁹ The report observed that the educational exceptions in section 32 of the CA 1994 are very poorly drafted and defined so they contain some gaps which can be interpreted to allow the photocopying of entire textbooks or substantial portions to be done freely.³⁰ Also, the provision does not expressly provide a clear limitation as to the amount of reproduction or clear prohibition on multiple reproductions and does not make clear that photocopy shops that make photocopies of published materials or hand over photocopied materials to students can be held liable for copyright infringement.³¹ Hence, it requested that this loophole should be closed and suggested that the Thai copyright law should be amended in order to safeguard the economic interests of copyright and prohibit a photocopy shop from providing and selling photocopies of the entire textbooks or substantial portions of the works to the students.³²

It is important to note that the specific exception for the reproduction by librarians in section 34 also has similar problems to other educational exceptions under the CA 1994 which are subject to the two conditions in section 32 paragraph 1. In this aspect, the exception for reproduction by libraries in section 34(2) permits the librarian to reproduce part of a copyright work for another person for the purpose of research and study, provided that such reproductions is not for profit and section 32 paragraph 1 is complied with. Since the exception is also subject to the two conditions in section 32 paragraph 1, the unclarity and ambiguity of the two conditions also affect this exception as well. In this instance, this exception does not have a clear limitation as to the permissible amount of reproduction by librarian because it is unclear when and to what extent the reproduction by libraries can be considered as 'conflict with a normal exploitation of the copyright work' and 'unreasonably prejudicial to the legitimate right of the copyright owner'. Also, the language of the provision does not prohibit the librarian from making multiple and systematic reproduction for the students. Also there is no judicial decision of the Thai courts on this exception making this matter clear.

Although the exception in section 34 clearly prohibits the librarian from reproducing the whole work for the users by stating that the librarian can reproduce only part of copyright materials for the purpose of research and study of the users, the term 'part of copyright work' does not prevent the librarian from making multiple copies of the part. This means that the librarian can make multiple copies of the part of the same materials for the purpose of research and study of the students. Moreover, this exception allows the library to reproduce copyright materials without taking into account whether such copies are available in the market and could be obtained at a reasonable price or not. Thus, even if the copies are available in the market at a reasonable price, the library can still make copies of part of the work for the users. This is different from the US copyright law which requires the library to check whether or not such books are available in the market at a reasonable price before reproducing them. Thus, the exception for libraries in section 34 does not properly safeguard the economic interest of copyright owners, and it needs to be amended and developed. The proposed changes to the exception for libraries will be discussed in section 4 of this article together with the proposed changes to other educational exceptions.

2) Problematic approaches to the exceptions by the Thai IP Court
The second factor which makes it more difficult to safeguard the economic interests of copyright owners had also been created by the IP Court in decision no. 784/2542 (part of this decision was discussed in the previous section). In this vein, not only did the court in this decision not clarify the meaning of the two conditions but it also created the approach which seems to weaken the effectiveness of copyright protection in the Thai education sector. In this vein, although the court found that the works reproduced by the defendant were for classroom use and the defendant received instruction from students taking the course to compile a 'course pack' consisting of excerpts ranging from 15% - 30% of five copyright textbooks, it was of the view that by allowing students to duplicate only one article from an entire journal or one chapter from a book would result in a misunderstanding or non-understanding of the thoughts or philosophy in the book.³³ Then, the court emphasized the fact that the work reproduced is used in classes of the university which have around 16,000 students but the university's library has approximately 20 copies of the said works and a student can only borrow the original copy for 7 days. Since the numbers of books available in the library do not match with the numbers and the needs of 16,000 students, the court held that reproduction of the books is necessary for the students. It observed that if any student reproduces some parts of the book which a teacher specifies for study in class, it is considered a justifiable use of work within the exception for research and study under section 32 paragraph 2(1) of the CA 1994. Also, it believed that when every student does the same thing, all students should be granted exemption from the copyright infringement.

In order to support its reasoning, the Thai court referred to the US decision in the Princeton University Press case³⁴ , where the US Court of Appeal states:

'…the strict interpretation of fair use by the majority judges might result in the obstruction of educational progress in the US. The economic rights enjoyed by the creator under copyright law shall be secondary to the main purpose of copyright law, that is, to encourage creative thinking in general.'³⁵