Thailand Law Journal 2014 Spring Issue 1 Volume 17

The IIPA also indicated that this approach is problematic because it sets no limitation on the scope of permissible reproduction under the educational exceptions since the court held firmly that receipts showing copies made on order or on behalf of students would entitle the defendant to avail himself of the defence under the educational exception.⁵⁵ This means that the reproduction of entire textbooks or multiple reproductions can be done under the exceptions as long as the defendant has receipts showing that copies were made on the order of the students. If such an approach to the exception continues, it will hinder the publishers' efforts to protect their copyrights as well as increase the level of copyright infringement in the Thai education sector.⁵⁶

The IIPA believes further that the growth of copyright infringement in the Thai education sector results from the problematic approach.⁵⁷ For instance, the photocopying of educational materials is widely supported by lecturers as a result of a broad misinterpretation about the scope of permissible reproduction under the educational exceptions.⁵⁸ Especially, section 32 paragraph 2(6) of the Thai CA 1994 which allows the teachers to reproduce educational materials for teaching purposes has been completely misinterpreted by the teachers and universities in Thailand as allowing the reproduction of entire books and their distribution to the students.⁵⁹ The studies indicate that many lecturers or instructors often use university facilities to reproduce copyright works for their students and also frequently provide the students' reading lists to photocopy shops so that those shops can anticipate demand and prepare the photocopies of the books for the students in accordance with the reading lists.⁶⁰ In some cases, the lecturers even place the orders for the students' copies themselves and send someone to collect them. For instance, the statistics indicated that over two-thirds of students at Chulalongkorn University received photocopied textbooks from their lecturers.⁶¹

Importantly, the IIPA emphasized that the two conditions in section 32 paragraph 1 have been interpreted by the Thai courts in a way incompatible with international norms and standards regarding permissible uses of copyright materials. So if Thai copyright law continues to permit what these judges say it does, Thailand will remain in violation of its international obligations under the Berne Convention and the TRIPs Agreement.⁶² The IIPA stated that in order to comply with the three-step test in the Berne Convention and the TRIPs Agreement, such exceptions need to be clarified by confirming that, contrary to some interpretations by the Thai courts, the exceptions are not applied to permit wholesale copying of academic materials or textbooks without payment of royalty fees to the copyright owners, or to allow students, teachers, or photocopy shops or anyone else acting on their behalf to reproduce copyright works in a way that impinges on the exclusive rights of the copyright owners under international law.⁶³ It also suggests that Thailand should take steps to narrow the relevant provisions to ensure compliance with international norms.⁶⁴

and study' purposes.⁶⁵ These associations observed that although both cases had been appealed to the Thai Supreme Court, it does not help to solve the problem because the Supreme Court decisions seem to leave open the possibility that if prior requests by the students were documented, a photocopy shop engaged in photocopying of copyright materials would be able to claim the benefit of the exception for the reproduction for non-profit 'research and study' purposes.⁶⁶ This is because the decision of the Supreme Court was based on a finding that the defendant had failed to demonstrate that the unauthorized copies seized by the police had been made at the specific request of students so there is still a possibility that if there is clear evidence that prior requests or orders were made by the students, then the photocopy shops might be able to benefit from the exception. Hence, these decisions of the Supreme Court do not disapprove the lower court's reading of the law but even encourage commercial piracy of textbooks.⁶⁷ These associations indicated that such an approach to the interpretation of the educational exceptions would undermine the economic interests of copyright owners and concluded that legislative changes are needed in order to clarify some ambiguities in the educational exceptions in the Thai CA 1994 and also the inappropriate approach in the two decisions should be solved.⁶⁸  

3) Exceptions and moral rights    

Although the moral right of the author to be identified as the creator of the work under Article 6bis of the Berne Convention is specifically recognized and implemented in section 18 of the Thai Copyright Act 1994 (hereinafter CA 1994), the majority of the educational exceptions (especially those in the list of permitted acts in section 32 paragraph 2) do not support this right of the author because they do not require that such reproduction of the work under the exceptions must be accompanied by a sufficient acknowledgement of the author and the work. For example, the exception for research and study in section 32 paragraph 2(1) allows users to reproduce copyright works for non-commercial research and study, but without requiring sufficient acknowledgment of the author. Likewise, the exception for teaching in section 32 paragraph 2(6) allows the reproduction, adaptation, exhibition or display of a work by a teacher for the benefit of his teaching, but again without sufficient acknowledgement being necessary. Similarly, the exception for educational institutions in section 32 paragraph 2(7) permits educational institutions to reproduce copyright materials for distributing or selling to students in class or in an educational institution without any requirement of sufficient acknowledgment.⁶⁹ Also, the use of copyright works as part of questions and answers in an examination can be done under section 32 paragraph 2(8) without sufficient acknowledgement of the author.

The only educational exception which requires the reproduction to be done with sufficient acknowledgement is the specific exception for 'use as reference' in section 33. The problem is that this exception operates independently and separately from other educational exceptions. Pursuant to section 33, a reasonable recitation, quotation, copy, emulation or reference from a copyright work with an acknowledgement of the ownership of copyright in such work will not be deemed an infringement of copyright provided the two conditions in section 32 paragraph 1 are also complied with. But this exception does not mean that all users of educational materials are required to provide sufficient acknowledgement as to the original work and its author. It only means that the users can benefit from this exception as long as they reproduce such works with sufficient acknowledgement. In other words, the user who does not provide sufficient acknowledgement as to the author or the original works will lose only the right to benefit from this specific exception but will still have the right to claim under other educational exceptions which do not require sufficient acknowledgement.

The lack of a condition of sufficient acknowledgement in the majority of the educational exceptions indicates that the current provisions do not respond to the nature of the use of research materials. The condition of sufficient acknowledgement is based on the fact that research and educational materials normally owe their existence to what has gone before; indeed the authors of these types of works often use some idea or knowledge from the previous works in order to build or create a new one.⁷⁰ The condition of sufficient acknowledgement therefore seems to be necessary so that the person receiving a copy of the work could have notice of the earlier creator's identity. In order to ensure that moral rights of the copyright owners will be recognized by the educational exceptions under the CA 1994, amendment to these exceptions seems to be unavoidable.