Thailand Law Journal 2014 Spring Issue 1 Volume 17

Although this approach may be useful to the public, it would have undermined the economic interest of the copyright owners and creativity in the education sector in the long run. This approach of the Thai court focuses only on the interest of the users in education and does not take into account the necessary incentives for creativity, the economic interest of the copyright owners and the publishing industry which must be balanced with the public interest in education. It clearly impairs the economic interests of copyright owners and incentive for creativity by stating that if the numbers of the text books in the library are not available to match with the numbers and the needs of students, or if the price of books is too great or not reasonable, then such reproduction of copyright materials by the students can be exempted under the exceptions for research and study. This approach seems to allow multiple reproductions to be done if the materials are not available in the library for the large numbers of students, regardless of whether such textbooks are available for the students to obtain in the market place.
This approach clearly illustrates that the Thai court does not take account of the fact that the publishers and those in the education sector depend on each other, and that damage to the interests of copyright owners and publishing industry would result in damage to the education sector in the end. This concept is recognized in the Universities UK decision³⁷ , where the UK Copyright Tribunal noted that it is necessary to maintain the balance between the interests of copyright owners (including the publishing industry) and the interests of education, because these two groups depend on each other. The publishing industry depends on academic authors for its raw materials and a healthy publishing industry is particularly important to those in education.³⁸ The Tribunal emphasizes that a broad generalized approach on exceptions would be damaging to the publishing industry, and in consequence damaging to education.³⁹ It is clear that the current approach of the Thai court does not recognize the relationship between the public interest and the interests of copyright owners or the publishing industry, since it clearly opposes the restrictive interpretation of copyright exceptions and takes a broad approach in interpreting the exception in favour of the students only. The IIPA of the US also agreed with this view by stating that section 32 of the Thai CA 1994 creates an unclear and overly-broad exception which has been broadly interpreted by the Thai courts to allow unauthorized photocopying of entire textbooks or substantial portions of published materials as long as the copy is made for educational purposes.⁴⁰

Further, the Thai Court in this case also created another problem in interpreting the term 'not for profit' as follows: 
'When looked in the view of business mechanics and division of work, each student, instead of copying one copy each, may need to hire someone else to copy instead. The person hired or acting on their behalf may provide service by means of trade, by collecting fees, copying and paper expenses. In this case, even though photocopy shops copy for commercial purpose or profit, but such performance is a direct consequence of the use of labour, machine and equipment of shop, i.e., man, photocopying machines and paper. Photocopy shop did not seek profit from the copyright infringement of others, but is a performance under an employment agreement between the student and the shop. Shops are regarded as tools or representatives in making photocopies for student. The exception to the copyright infringement used with the student shall also apply to the shops.'⁴¹     

At the price of 0.60 Baht per page, the court did not find that profit was derived from infringement of copyright. Thus, the photocopy shops who were copying entire textbooks for the students were successful in arguing that they could not be held liable for copyright infringement because they are not engaged in illegal copying but rather simply providing a photocopy service to the students. This decision illustrates that if the photocopy shop was acting on behalf of the students or by order of the student, then the exceptions from copyright infringement given to the students can also be extended to the photocopy shop as well. Nevertheless, the evidence must be shown to the court that such action was done by the orders of the students or on behalf of the student. If the photocopy shop can prove that there is an order from the students, then the profit granted from photocopying the work will not be considered as profit from infringing another's copyright but will be the profits in exchange for the use of human labour instead. 

However, it is important to note that the IP court decision no. 784/2542 was reversed by the Supreme Court in the Supreme Court Decision no. 5843/2543. ⁴² The Supreme Court pointed out that the defendant reproduced many copies of the copyright materials and kept them at his store which was close to the university where the classes using the textbooks took place. This fact illustrated that the defendant was likely to have chances to sell those copies to the students who enrolled in the course that required using those copies. Also, the Supreme Court found that the defendant made a confession when he was arrested by police and during the process of interrogation that he reproduced the copyright works of others for the purpose of sale. And the police found the evidence of 43 copies of photocopied work in the shop of the defendant. After considering this evidence, the court held that it was reasonable to believe that the defendant reproduced the copyright works for purpose of sale and seeking benefits from selling those copies for his own business.

The Supreme Court outlined that the circumstances of this case cannot be regarded as copying for hire by the students for the purpose of research and study because there was no witness or evidence from the defendant to prove that he merely photocopied because of the orders of students.⁴³ Hence, the defendant photocopied copyright works, not for giving a photocopying service as he claimed, but for commercial purposes and seeking profit from the copyright work, which infringed the right of the copyright owner and was not within the exception under the Thai CA 1994.⁴⁴ The Supreme Court declared the defendant guilty and overruled the judgement of the IP Court.

It is clear that the Supreme Court in no. 5843/2543 made different finding of facts from the IP Court, so the Supreme Court did not reverse the reasoning in the previous decision of the IP Court which allows the reproduction to be exempted under the exceptions as long as the defendant has the order forms.⁴⁵ This is because the IP Court might go too far in extending the exception to copyright infringement without adequate ground in the facts.⁴⁶ Nevertheless, if the defendant in this case can provide clear evidence that he photocopied the copyright works under an order from the students, he can claim that he only gives photocopying service to students and thus, his action does not infringe copyright. However, the defence lawyer in this case provided only the defendant's testimony and did not prove any other defence evidence.⁴⁷ This is the reason why the Supreme Court held that the defendant is guilty. The Supreme Court clearly emphasized the fact that the defendant made a confession that he is guilty in the process of arrest and interrogation, while the IP court gave this little weight.⁴⁸

Although the IP Court decision no. 784/2542 was overruled by the Supreme Court, it raised several important issues such as the lack of the CCS in the Thai education sector and the two inappropriate approaches which undermine the effectiveness of the copyright protection regime in the Thai education sector. The same problems have also been acknowledged by the IP Court in the decision no. 785/2542.⁴⁹ This case has similar facts to the IP Court decision no. 784/2542 discussed above. The defendant also operated a photocopy shop by providing general photocopy services to the public. The plaintiff claimed the defendant infringed copyright by photocopying excerpts extracted from textbooks for which the plaintiffs held the copyrights. Those excerpts were selected by the professor for a class in the nearby university. The main difference is that the court in this decision found the defendant prepared the photocopy in advance, while the amount of seized photocopies in this decision was much larger than that of the decision no. 784/2542.⁵⁰

However, the court decision no. 785/2542 also referred to the reasoning in the previous IP Court decision no. 784/2542. Then, it stated that the decision no. 785/2542 is different from the previous decision no. 784/2542 because the defendant in this decision could not prove to the satisfaction of the court that copying of the plaintiff's copyright work was done under the order forms or the employment contract between the student and the photocopy shop. Therefore, the defendant in this case could not rely on the student's exceptions because he could not prove that the students ordered him to make a copy of copyright materials. The court held that the defendant copied the copyright work under his own initiative without instruction or order from the student. The defendant prepared all photocopies of the copyright works in advance and then promptly sold them. Hence, the defendant could not claim the defence under the exception for research and study because the defendant's act was for commercial purposes and not for the purpose of education or research. Also, since the court found that the amount of seized photocopies in this case was quite large, it held that the defendant unreasonably disturbed the right of the copyright owner to utilize the copyright work to gain benefit in the ordinary manner.⁵¹ Hence, the IP Court declared that the act of the defendant was copyright infringement for profit-seeking purposes. Although the court declared the defendant guilty, it only imposed a lenient fine because it believed that the defendant's act was committed to facilitate the students and for profit in a reasonable manner.

The parties disagreed with the IP Court decision and appealed to the Supreme Court. The Supreme Court Decision no. 1772/2543 (2000) affirmed the decision of the IP Court. It was confirmed that copying documents in accordance with the order or the instruction of students or teachers for the purpose of research and study without the purpose of making profits could be exempted from infringement of copyright under section 32 paragraph 2(1). If the defendant acted on behalf of students who were eligible to raise the exception of copyright infringement, the defendant would have been eligible for the exception of copyright infringement in the same manner as the student. However, the defendant's shortcut of copying the copyright work in advance under his own initiative and then selling those copies to the students without a prior order from them meant that he could not claim the copyright exception for research and study.

It is undeniable that this problematic approach of the Thai courts has weakened the copyright protection regime in the Thai education sector and impaired the economic interests of copyright owners. The photocopy shops rely on a 'made to order' basis through the order form in order to avoid the infringement of copyright. In this aspect, the photocopy shops attempt to use this approach of the IP Court to their benefit by requesting all students and their customers who want to photocopy the books to fill in the order forms or the employment contracts provided by the photocopy shops. As a result, they can use these order forms as evidence to prove that such reproduction is done by the orders of the students or on behalf of the student so that the profit granted from photocopying the work will not be considered as profit from infringing copyright but as profits in exchange for the use of human labour instead.

The IIPA of the US has also complained about this problematic approach in several of its reports. In this vein, it stated that although the Supreme Courts and the IP Courts have held in several decisions that the preparation of the photocopied textbooks in advance for selling to the students is considered as copyright infringement and cannot be exempted under the exception, the investigators from the publishing industry found that photocopy shops not only copy any book upon demand but also around 60% of them were found to hold pre-copied books in advance.⁵² Nevertheless, this means that around 40% of the photocopy shops will not keep infringing materials in stock or reproduce such materials in advance but will only make copies after orders are received from students.⁵³ This method of a 'made to order' system, in which requested copies are made and immediately distributed, can help to avoid the risk of infringing copyright in accordance with the approach of the Thai IP Court to exceptions. Therefore, the IIPA requested the Thai government to solve this problem since the photocopy shops have learned to avoid stockpiling of infringing textbooks by moving to a 'made to order' system.⁵⁴