Thailand Law Journal 2014 Spring Issue 1 Volume 17

Similarly, Senftleben asserts that an incalculable and unlimited scope of the provisions exempting a wide variety of different uses is impermissible under the requirement of 'certain special cases'.¹³⁴ He explains that the requirement of 'certain special cases' aims at diminishing the potential harm flowing from the exceptions in national copyright law by underlining that the scope of the exception must be clear and serve clearly specified purposes, while an exception for no specified purposes must be perceived as impermissible.¹³⁵ This means that the privileged special case under the exception must be known so that it becomes foreseeable whether or not such use of a work can be exempted.¹³⁶ He is of the view that general exceptions like fair use are incompatible with the condition of 'certain special cases' because the requirement of legal certainty laid down in the word 'certain' militates against the approval of general exceptions like fair use under the three-step test since it provides such great discretion and flexibility to a court.¹³⁷ He concludes that general exceptions like fair use are not qualified as a certain special case because a special case requires that an exception is delineated in order to allow only the use for a specific purpose, and since a general exception is not confined to a specific purpose, it is not a special case and is inconsistent with the three-step test.¹³⁸ Therefore, the recognition of section 32 paragraph 1 as a general exception in broad terms will result in uncertainty since the exception can be applied in any circumstances and is thus not limited to any certain cases. Even if we apply it in limited circumstances for the purpose of filling a gap where the specific exceptions cannot cover the issues, it is still hard to predict when the exception will apply to the case because the legislation has so many gaps and unclear provisions. With this approach, there could be situations where a court allows a use that would not ordinarily be permitted under the Berne Convention and the TRIPs; so it is clearly not limited to any certain special case.

This Article concludes that the recognition of section 32 paragraph 1 as a general exception even in limited circumstances will only cause more problems and result in uncertainty about the exceptions as a whole because it is hard to determine a clear scope for their application and the provisions can broadly apply to all uses of copyright works. The concept of the general exception like fair use is intended to ensure flexibility, giving the court freedom to interpret and adapt the criteria in the exceptions to particular situations on a case-by-case basis.¹³⁹ Nevertheless, although this concept offers great flexibility to the court, it comes at the expense of or in exchange for certainty because the general exception is normally not limited to specific types of use or any certain special cases but makes any use which the court deems to be fair non-infringing.¹⁴⁰ The only certainty involved in construing the general criteria or exception is uncertainty about how a court will ultimately rule because the application of such an approach is wholly a case-by-case determination.¹⁴¹ This unpredictability of outcome is part of what makes general exceptions troublesome. It is not appropriate for Thailand, so in order to ensure the certainty of the exceptions in term of their application and scope as a whole, the application of section 32 paragraph 1 as a general exception even in limited circumstances should not be allowed. At the present stage, the two conditions already cause problems of unclarity and uncertainty in the exceptions in Thailand. So if they are allowed to apply as a general exception similar to the fair use approach, it will only cause more problems and make the copyright exceptions even more uncertain.

Also, the concept of a general exception like the US fair use might not be able to operate effectively in a very different legal environment and culture such as in Thailand. This is because the Thai court seems to be more familiar with the fair dealing approach to the exceptions since it was used in Thailand for a long period of time before 1994. So the recognition now of the two conditions as a general exception would be quite alien to the Thai copyright system and would not be a good option for the country. My view is supported by D'Agostino who argues that the general exception like fair use, which allows any type of use to be 'fair' and merely provides factors to assist courts in their decision-making, has weaknesses and cannot simply be transplanted into another jurisdiction.¹⁴² She asserts that several reports indicate that fair use is 'ill' because such concept is often misguided, and the vast majority of users and those in education sector are fearful and anxious about whether their uses of copyright works are acceptable under the current fair use rules, so they have called on the US Congress to clarify or make fair use rules clearer.¹⁴³ Although many solutions have been proposed over the past few years, Congress has resisted changing fair use and also the US courts have failed to clarify the scope of the fair use exception.¹⁴⁴ She believes that the adoption of a general exception like fair use in other countries might engender 'many fix-it approaches': some by the courts themselves attempting to impose clear-line rules and others by governmental bodies and private sectors attempting to institute best practice guidelines.¹⁴⁵ Even if such clarification or specific amendments to a general exception like fair use can be carried out in other countries, it may take time before the fix that is sought can be achieved because in order to know the limits or weakness of such provision, it must be tested through the litigation process and thus, it does not appear that such clarity can be attained in the short period of time.¹⁴⁶ Further, importing one legal approach from the US Copyright law into other countries and replacing the existing law will probably cause some confusion. For example, Singapore has adopted the US fair use approach into its copyright system, but it is still called fair dealing and this show a reluctance to embrace fully fair use at the risk of causing undue confusion.¹⁴⁷ Importantly, no US FTA contains or mentions the US fair use approach in their copyright provisions, but all do contain the three-step test provision which stipulates that each party must confine exceptions to exclusive rights to certain special cases which do not conflict with a normal exploration of the works and do not unreasonably prejudice the legitimate interests of the right holder.¹⁴⁸ The note of this provision in the Chile-US FTA makes clear that the provision allows a contracting country to create exceptions that are appropriate in its domestic laws.¹⁴⁹   Since the two conditions cause problems of unclarity and uncertainty, this Article recommends that the two conditions in section 32 paragraph 1 should be removed from the provision in order to ensure the certainty of the copyright exceptions as a whole. Also, such removal of the two conditions would make the educational exceptions in the Thai CA 1994 come closer to the fair dealing approach of the UK in term of certainty. This is because the UK approach restricts the courts' application of the exception to some specific lists of permitted acts. This is different from the US approach, which provides more discretion to the court and is not limited to specific purposes or uses.¹⁵⁰ The UK courts have held in several decisions that the scope of the fair dealing exceptions extends only to the uses which are fair for the permitted purposes specified in the CDPA 1988 and not uses which might be fair for some other purpose or fair in general.¹⁵¹ Likewise, a similar approach can also be seen in the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (hereinafter the Copyright Directive), which was enacted to implement the WIPO Copyright Treaty in the European Union.¹⁵² This Copyright Directive was implemented in the UK by the Copyright and Related Rights Regulations 2003 on 31 October 2003 and leads to many changes in the UK CDPA and its exceptions.¹⁵³ The Copyright Directive also sets out a certain list of the permitted acts for which a member state may provide an exception.¹⁵⁴ This means that the defendants not only have to prove that their dealing with particular works is fair but also that their actions fall within the meaning of the permitted purposes. The restrictions to specific purposes and the limited discretion of the court under the UK and EU approaches seem to provide the advantage of certainty, which is lacking in the US approach.

Not only does the restrictive approach of the UK provide more certainty but it also causes less damage to the publishing industry than that of broad criteria or general exception. In this vein, the Copyright Tribunal in the case of Universities U.K. v. CLA¹⁵⁵ gave a reason for denying a broad generalized exception for educational establishments as follows: 

'In declining to create a wide generalised defence for educational establishments the legislature has struck a balance between the interests of copyright owners on the one hand, and the interests of education and scholarship on the other. A healthy publishing industry is important in general, but of particular importance to those in education. Wholesale exemption from the copyright laws for educational establishments would be damaging to the publishing industry, and in consequence damaging to education...'¹⁵⁶

The Tribunal emphasized that the publishing industry and academic authors in the education sector depend on each other, since the publishing industry needs academic authors for much of its raw material and the authors need the publishers for distributing their works. So if the publishing industry is damaged by a broad approach to the exception, it could adversely affect education in particular and the public interest in general. Hence, the removal of the two conditions from the copyright exceptions would also benefit the publishing industry in Thailand more than allowing these two conditions to apply as a general exception. 

Also, by removing the two conditions from the copyright exceptions, the scope of the educational exceptions in the Thai CA 1994 would be more certain because the court will determine the question of whether the use is fair in accordance with a certain list of permitted acts and specific exceptions. At the same time, these exceptions will also satisfy the requirement of 'certain special cases' in the three-step test because the educational exceptions will only apply if the work is used for one of the approved purposes specified in the list of permitted acts or specific exceptions. Any other type of use will not explicitly come under the protection of these provisions, regardless of how fair they are. With the removal of the two conditions, the operation of the educational exceptions in the Thai CA 1994 will mainly rely on the provisions in the list of permitted acts and specific exceptions rather than on the two conditions in section 32 paragraph 1. This means that the problem of whether these two conditions can be applied as a general exception will be automatically solved by such removal.