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Thailand Law Journal 2014 Spring Issue 1 Volume 175.1) Whether section 32 paragraph 1 should be applied as general exception? Since the CA 1994 does not provide any definition related to the two conditions in section 32 paragraph 1, the interpretation and the application of the two conditions are left to the assessment of the court. As already mentioned in the previous section, although several decisions of the Thai IP Court have indicated that the two conditions form a pre-condition together with the other additional conditions provided by the exceptions in the list of permitted acts and the specific exceptions, the court has remained silent on the question of whether or not the two conditions can be applied in their own right as general exceptions.94 In this section, the article considers the arguments which support the recognition of these two conditions as a general exception, and then argue that these two conditions should not be applied as general exceptions and should be removed from the educational exception in order to make the provisions more certain and effective in protecting the economic interests of copyright owners.
Subhapholsiri suggests that section 32 paragraph 1 should be enforced alone as a general exception in a limited sense and circumstances.95 He gives three reasons supporting this argument. First, the wording and context of the section, which is the primary source of interpretation, provide clear conditions to be satisfied and clear results from satisfying these two conditions.96 In this vein, the language of the section clearly indicates that if uses satisfy the two conditions in section 32 paragraph 1, it will result in an exception to copyright infringement. Therefore, he believes that by reading section 32 paragraph 1 alone, it is understandable that it can be independently applied.Second, he argues that the recognition of section 32 paragraph 1 as a general exception will help to fill a gap in the copyright exceptions because it is impossible for the exceptions in the list of permitted acts in section 32 paragraph 2 and specific exceptions in section 33 – 43 to cover all types of works and all purposes of appropriate and reasonable use.97 There are still some types of works and purposes of use which are fair but which are not in the exception provisions in the Thai CA 1994.98 For example, there is no specific provision under the CA 1994 that can be applied to parody, or to some digital materials; so if the two conditions in section 32 paragraph 1 can be enforced as the general exception, it can be used to apply to these circumstances.99 Nonetheless, he emphasizes that section 32 paragraph 1 should be applied as a general exception in relatively rare circumstances, only for the purpose of filling a gap in the list of permitted acts in section 32 paragraph 2 and the specific exceptions in section 33 to 43.100 Section 32 paragraph 1 should not be used as a general exception in any other circumstances. Thus, it is believed that the recognition of section 32 paragraph 1 as a general exception for the purpose of filling gaps in the copyright exception s can help to protect the public interest, especially where a purpose of use is fair but that use does not fall within the scope of the exceptions in the list of permitted acts and specific exceptions in the Thai CA 1994. Finally, it is argued that the recognition of section 32 paragraph 1 as a general exception in a limited sense is not in breach of the requirement of 'certain special cases' in the three-step test in the Berne Convention and the TRIPs Agreement. In this vein, the three-step test requires first that exceptions have to be limited to 'certain special cases'; second, the use of a copyright work under an exception must not conflict with the normal exploitation of the work; and finally, such use must not unreasonably prejudice the legitimate interests of the author or right-holder.101 The main concern is the question of whether the recognition of the two conditions in section 32 as a general exception is in breach of the requirement of 'certain special cases'. Subhapholsiri argues that if the two conditions in section 32 paragraph 1 only apply as a general exception in limited circumstances for the purpose of filling the gap of copyright exceptions, then it is still confined to 'certain special cases'.102 He contends that the application of section 32, paragraph 1 as a general exception in limited circumstances is different from the application of the fair use exception in terms of scope, certainty and flexibility.103 It is important to note that the general fair use exception in the US copyright system provides broad criteria for determining whether the use is fair and this has resulted in a serious debate as to whether a general fair use exception is compatible with the three-step test.104 This issue has not yet reached conclusion.
Okediji believes that the fair use doctrine is a broad exception to the rights granted to authors under the Copyright Act so it clearly is not limited to special cases.105 In this aspect, if section 32 paragraph 1 is broadly applied as a general exception in every circumstance, then it would probably be in breach of the requirement of 'certain special cases' in the three-step test. As Ricketson points out, a broad kind of exception would not be justified under the requirement of 'certain special cases'.106 Nevertheless, because the recognition of the two conditions as a general exception in the suggested approach is not broadly and widely applied in every circumstance, it is different from the fair use approach because it will only apply in limited circumstances for the purpose of filling gaps. In the circumstances where there is no gap, the exceptions in the list of permitted acts and specific exceptions will be applied normally, so section 32 paragraph 1 is limited to certain special cases. Hence, it is concluded that even if the fair use approach is in breach of the three-step test in the TRIPs and Berne Convention, the application of section 32, paragraph 1 as suggested is not. However, this article opposes the above approach and recommends that the two conditions in section 32 paragraph 1 should not be applied alone as general exceptions even in limited circumstances. Instead, they should be removed from the Thai CA 1994 in order to make the educational exception more certain and effective in protecting the economic interests of copyright owners. My position is based on four arguments. First, although the language of section 32 paragraph 1 provides clear conditions to be satisfied and also clear results from satisfying those conditions, the legislators of the Thai CA 1994 had no intention to allow section 32 paragraph 1 to apply as a general exception.107 In this vein, by considering the wording and context of the exceptions in the list of permitted acts and the specific exceptions as a whole, it is clear that the legislators of the CA 1994 had no intention to allow section 32 paragraph 1 to apply as broad criteria or as a general exception, because these exceptions have incorporated the two conditions in section 32 paragraph 1 as pre-conditions that need to be complied with alongside other additional conditions provided in these exceptions in order to be exempted from copyright infringement.108 Further, there is no need to allow section 32 paragraph 1 to apply alone as a general exception because the exceptions in the list of permitted acts and specific exceptions are already wide enough to cover most issues. Hence, by considering the whole context of the provision on the exceptions in the CA 1994, the two conditions in section 32 paragraph 1 cannot be applied as a general exception but should only be applied together with other additional conditions in the exceptions in the list of permitted acts or specific exceptions.
Second, since the two conditions in section 32 paragraph 1 are the same as the second and third conditions of the Berne three-step test, the recognition of section 32 paragraph 1 as a general exception seems to be inconsistent with the object of that test. The three-step test in Article 13 of the TRIPs Agreement and Article 9(2) of the Berne Convention requires that the exceptions to exclusive rights under national copyright laws must be confined to certain special cases while second, such cases must not conflict with a normal exploitation of the work; and third, they must not unreasonably prejudice the legitimate interests of the copyright owners. The object of this three-step test is to limit exceptions in national copyright law by requiring all contracting countries to confine limitations or exceptions. It is clear that the three-step test itself is not a copyright exception. Senftleben observes that the three-step test in Article 9(2) of the Berne Convention and Article 13 of the TRIPs Agreement is not itself a copyright exception but is rather a useful parameter for creating or adopting exceptions to the exclusive right in national copyright law.109 He explains that the objective of the three-step test is to exert direct control over copyright exceptions under national copyright laws or to set the limits within which national legislation may provide for exceptions, so national legislators must ensure compliance with the test.110 This direct control function of the three-step test aims at controlling not only new exceptions but also existing exceptions in the field. He asserts that the three-step tests contained in article 9(2) of the Berne Convention, Article 13 of the TRIPs and Article 10 of the WCT are alike because they each concern the delicate balance between the grants and the reservations of copyright law.111 The main difference is that each controls or governs the exceptions to different types of rights. In principle, Article 13 of the TRIPs and Article 10 of the WCT are only directly applicable and function as the direct control mechanisms if Article 9(2) of the Berne Convention is not applicable.112 For example, if restrictions are imposed on the reproduction right of Article 9(1) of the Berne Convention, then the three-step test in Article 9(2) of the Berne Convention functions as a direct control mechanism.113 But, if it comes to the exceptions to the rental rights in Articles 11 and 14(4) of the TRIPs, then the three-step test in Article 13 of TRIPs will function as the only direct control mechanism because the rental rights introduced in TRIPs are beyond the scope of the Berne Convention.114 Likewise, the three-step test in Article 10 of WCT is the only direct control mechanism which sets limits to potential national exceptions to the right of communication to the public, and since this right is granted in Article 8 of the WCT, no provisions in the Berne Convention are applicable.115 It is clear that these three-step test provisions in TRIPs and WCT are additional safeguards to Article 9 of the Berne Convention, since they exert direct control over the exceptions to the rights which are not covered by the Berne Convention. In practice, exceptions in national copyright laws can be considered as legitimate under Article 9(2) of the Berne Convention and Article 13 of the TRIPs Agreement as long as they satisfy the three-step test.
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94 Supasiripongchai, N, 'Copyright infringement and educational exceptions in Thailand: What should be the solution to the problem of copyright infringement in the Thai education sector?' (2011), in WIPO-WTO Colloquium Papers: Research Papers from the WIPO-WTO Colloquium for Teachers of Intellectual Property Law 2011, (published by the WIPO Academy of World Intellectual property Organization (WIPO) and the Intellectual Property Division of World Trade organization (WTO), Geneva Switzerland, August 2012). 133 – 151 Accessible at http://www.wto.org/english/tratop_e/trips_e/wipo_wto_colloquium2011_e.pdf [accessed February 20, 2014] 95 Subhapholsiri, D, Copyright law: the Copyright Act B.E. 2537 (1994), (3rd ed, Nititham Publishing House, Bangkok 2001), at 234. 101 The three-step test is also embodied in Article 10 of the WIPO Copyright Treaty which merely repeats the language contained in TRIPs Article 13 and Berne Article 9(2). 102 Subhapholsiri, D, Copyright law: the Copyright Act B.E. 2537 (1994), (3rd ed, Nititham Publishing House, Bangkok 2001), at 235. 104 Senftleben, M, Copyright, limitations and the three-step test: An analysis of the three-step test in international and EC copyright law, (1st edn, Kluwer Law International, Netherlands 2004), at 113. 105 Okediji, R, 'Toward an international fair use doctrine' (2000), 39 Columbia Journal of Transnational Law 75, at 94. 106 Ricketson, S, The Berne Convention for the Protection of Literary and Artistic Works, (1st edn, Kluwer, London 1987), at 482. 107 Subhapholsiri, D, Copyright law: the Copyright Act B.E. 2537 (1994), (3rd ed, Nititham Publishing House, Bangkok 2001), at 234. |
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