Thailand Law Journal 2014 Spring Issue 1 Volume 17

Copyright exceptions for research, study and libraries in Thailand: What should be developed and reformed in order to improve the copyright protection regime?

By Dr. Noppanun Supasiripongchai *

Introduction

Copyright exceptions are one of the problematic areas in the Thai Copyright Act 1994 (henceforth Thai CA 1994) because many provisions in this area are unclear and uncertain. The exceptions to an infringement of copyright are regulated in sections 32 to 43 of the Thai CA 1994. These copyright exceptions can be classified into three categories. The first category is the general conditions or the two pre-conditions in section 32 paragraph 1, which provides that an act against a copyright work of another person which does not conflict with a normal exploitation of the copyright work and does not unreasonably prejudice the legitimate right of the owner of copyright shall not be deemed an infringement of copyright. The second category is the exceptions in the list of permitted acts in section 32 paragraph 2, which consists of eight permitted purposes or uses that can be applied to all types of works: exceptions for research and study; private use; criticism and review; reporting current events; use in judicial or administrative proceedings; reproduction by teachers for instruction purposes; reproduction by educational institutions¹ ; and use in assignments or examinations. The third category is the specific exceptions in sections 33 to 43, which can only apply to specific types of use or certain purposes: exceptions for use as reference; for use by librarians; for use of a computer program; for use of dramatic and musical works; for use of artistic works; for use of architectural works; for use of cinematographic work; and for government use.

However, this Article will not consider all copyright exceptions but only those relating to research, study, library and education. Thus, the scope of the Article will be limited to the following exceptions: First, the general conditions or two preconditions in section 32 paragraph 1; Second, four exceptions from the list of permitted acts in section 32 paragraph 2 which are: exceptions for research and study in paragraph 2(1), for teaching purpose in paragraph 2(6), for reproduction by educational institution in paragraph 2(7)² , for use in assignment or examination in paragraph 2(8). Third, two specific exceptions which are related to education are the exceptions for use as reference in section 33 and exceptions for library use in section 34. The main objects of this Article are: 1) To identify the problems with the educational exceptions under the Thai CA 1994 and demonstrate that these exceptions need to be developed; 2) To suggest and recommend about what should be changed and developed in order to solve the problems and achieve better protection for copyright owners in the Thai education sector. 

of any foreign country deny adequate and effective protection of copyright.⁴ These reports of the IIPA analyzed legal and enforcement deficiencies and highlighted the problems and recommended corrective actions in 48 countries including Thailand. Since the number of copyright infringements in Thailand seems to grow rapidly⁵ , the IIPA has reported the situation of copyright infringement in Thailand to the USTR every year from 2001 until now through 'the annual Special 301 reviews on copyright protection and enforcement in Thailand', which can lead to the sanction or the removal of the Generalized System of Preference (GSP) that affords duty-free entry to many imported goods from Thailand.
Further, the IIPA also worked with the US government on the IPR provisions of all the recent FTA Agreements⁶ , including IPR chapters that contain significant obligations about copyright protection.⁷ This means that the IIPA has an important role not only in formulating the annual Special 301 reports for the USTR but also in creating the copyright provisions in the US FTAs, including the prospective Thailand-US FTA.⁸ Hence, the problems about the copyright exceptions in Thailand which are acknowledged in the IIPA are relevant for this article to take into consideration.   

books complete with prices of each available for made-to-order sale in photocopied form.¹⁰ Interestingly, the statistic indicates that around 60% of all students obtain illegally photocopied versions of the textbooks for schools and universities from commercial copy shops just like the shop at the Chulalongkorn University.¹¹ The university campuses where photocopying of the entire textbooks seems to be particularly prevalent include Chulalongkorn University, Assumption University, Sripatum University, and Mahanakorn University.¹²