he cause of this problem is that the educational exceptions in section 32 of the Thai CA 1994 do not contain the requirement of sufficient acknowledgement along with the lack of a Copyright Collecting Society (CCS) in the Thai education sector to provide licences for those who wish to translate English-language textbooks into Thai for publication.⁷⁷ With the gap in the educational exceptions and the lack of a CCS, lecturers can routinely include significant excerpts from English-language textbooks in their own materials without giving proper credit or acknowledgement.⁷⁸ Thus, the IIPA demanded that the Thai Government modernize or improve the educational exceptions and also establish a CCS in the Thai education sector in order to allow those who wish to translate English-language materials to obtain the appropriate licenses for such production.⁷⁹

for creativity of the authors who are supposed to be acknowledged as creators of the works.⁸⁰ In this vein, the lack of a requirement of sufficient acknowledgement in the educational exceptions can also undermine economic incentives for production and other incentives such as those of academic prestige or reputation.⁸¹Without the exceptions supporting moral rights to be acknowledged as the authors of the works, academic authors who create work in order to gain prestige or reputation in the education sector may lose motivations and incentives for creativity. Thus, the exception supporting the moral rights is not only aimed at protecting authors but also at promoting greater creativity to benefit the educational market and the public in the end.⁸²

he cause of this problem is that the educational exceptions in section 32 of the Thai CA 1994 do not contain the requirement of sufficient acknowledgement along with the lack of a Copyright Collecting Society (CCS) in the Thai education sector to provide licences for those who wish to translate English-language textbooks into Thai for publication.77 With the gap in the educational exceptions and the lack of a CCS, lecturers can routinely include significant excerpts from English-language textbooks in their own materials without giving proper credit or acknowledgement.78 Thus, the IIPA demanded that the Thai Government modernize or improve the educational exceptions and also establish a CCS in the Thai education sector in order to allow those who wish to translate English-language materials to obtain the appropriate licenses for such production.79

Most reports from the IIPA argued that this problem must be solved as soon as possible because it inflicts significant damage not only on the educational market and economic interest of copyright owners in Thailand but also on moral rights and the incentive for creativity of the authors who are supposed to be acknowledged as creators of the works.80 In this vein, the lack of a requirement of sufficient acknowledgement in the educational exceptions can also undermine economic incentives for production and other incentives such as those of academic prestige or reputation.81 Without the exceptions supporting moral rights to be acknowledged as the authors of the works, academic authors who create work in order to gain prestige or reputation in the education sector may lose motivations and incentives for creativity. Thus, the exception supporting the moral rights is not only aimed at protecting authors but also at promoting greater creativity to benefit the educational market and the public in the end.82

4) The current approach in Thailand and its problems with the three-step test

In the previous section, the article mentioned that several reports indicated that if Thailand continues to use its current legal approach to the copyright exceptions, it will have a problem about whether the exceptions under the CA 1994 comply with the three-step test. In this section, the article will consider why the current legal approach to the exceptions in Thailand will have this problem. The current approach to copyright exceptions seems to have no problem in satisfying the requirement of ‘certain special cases’ because the exceptions of the CA 1994 is based on a list of permitted acts which only allow certain purposes or uses to be exempted and also contains the specific exceptions which only apply to certain types of works and certain purposes of use. Importantly, it is still unclear whether or not the two conditions in section 32 paragraph 1 can be applied as a general exception like fair use. Presently, the Thai Court only allows the two conditions to apply as pre-conditions together with other additional conditions in the exceptions in the list of permitted acts in section 32 paragraph 2 and the specific exceptions in section 33, 34, 35, 36, and 43.83 Therefore, the exception in the Thai copyright law is still limited to certain special cases. The issues of whether or not the two conditions in section 32 paragraph 1 should be applied as a general exception and, if they can be applied as a general exception, whether they will satisfy the requirement of certain special cases will be discussed in next section.

However, it is clear that the current legal approach to the copyright exceptions in Thailand is unlikely to pass the second and third criteria of the three-step test. By allowing the wholesale reproduction of entire textbooks and multiple reproductions to be carried out under the exception for educational purposes can be considered as in conflict with the normal exploitation of the work which should not be permitted under the exceptions at all. Senftleben asserts that a conflict with normal exploitation arises where multiple reproductions or systematic reproductions are made and also where copies are made of entire works.84 He points out a practical example of photocopying, which cannot be permitted if it consists of reproducing a very large number of copies because that conflicts with a normal exploitation of the work.85 But if a small number of copies is made, photocopying may be permitted without payment, especially for educational purposes.86 The key point is that if such photocopying or reproduction is likely to compete with the original works and the authors of relevant works are deprived of a typical major source of income, then it is conflict with a normal exploitation of the works and cannot be permitted.87 It is quite clear that the approach to the copyright exceptions in Thailand, which allows multiple reproductions and the reproduction of entire textbooks, also deprives a typical major source of income of the authors and competes with the original works in the same educational market, so it clearly conflicts with a normal exploitation of the works.
The current approach to copyright exceptions also does not meet the third condition of the three-step test, which requires that the national copyright exception must not unreasonably prejudice the legitimate interest of copyright owners. In this aspect, this requirement seeks to safeguard the author’s interest in the right of reproduction and other legitimate interests that authors might have.88 The term ‘interest’ also encompasses the possibility of depriving an author of economic value from a work. The prejudice can be regarded as unreasonable if such amount of reproduction under the exception is inappropriate or unfair because of excessiveness in amount or degree.89 However, the harm flowing from an exception can be reduced to a reasonable level if the payment of equitable remuneration is made to the copyright owners.90 This means that unreasonable prejudice to the interest of copyright owners can be avoided if the payment of equitable remuneration or fair compensation has been made to the copyright owners. In case of photocopies, there would be no unreasonable prejudice to the legitimate interest of the author if adequate remuneration is paid, so the establishment of the CCS and its licensing scheme system, which can ensure that copyright owners receive the payment of equitable remuneration, will help to avoid an unreasonable prejudice to be caused.91 Nevertheless, in the case of Thailand it is clear that the exception allows the photocopying or reproduction of entire books and multiple reproductions without the payment of equitable remuneration to copyright owners. Since there is no CCS or licensing scheme system in the Thai education sector, it is difficult for the copyright owners to collect remuneration from the users and photocopy shops, so the exception of the CA 1994 cannot avoid unreasonable prejudice to the interest of copyright owners and thus, does not satisfy the third requirement.

In fact if the exception cannot pass the second criterion, there is no need to consider the question of whether or not the exception causes unreasonable prejudice to the legitimate interest of copyright owners. Senftleben explains that if a conflict with a normal exploitation arises, it means that the test procedure automatically comes to an end; the exception does not comply with the three-step test and thus, cannot be permitted regardless of whether or not equitable remuneration is paid.92 This is because the payment of equitable remuneration has no influence on the decision of whether or not an exception conflicts with a normal exploitation since only an unreasonable prejudice to legitimate interest can be prevented in this manner.93 Therefore, in the case of Thailand, the current approach to copyright exceptions has failed to satisfy the three-step test since it cannot pass the second criterion. The issue of whether or not the proposed changes recommended in this article can satisfy the three-step test will be discussed in the next section.
5)What should be the solution to the problems in Thailand?

The previous section indicated that the educational exceptions under the Thai CA 1994 do not provide proper protection for the economic interests of copyright owners. However, this section recommends that in order to solve the major problems mentioned in the previous section, it is necessary to reform the educational exceptions in the Thai CA 1994 generally by making them more restrictive and limited than at the present. Several changes need to be made to the provisions in order to achieve this goal. Firstly, section 5.1 recommends that the Thai Government needs to clarify that the two conditions in section 32 paragraph 1, which come from the Berne three-step test, should not be applied as a general exception and should be removed as such from the provisions, since they are the cause of ambiguity and uncertainty in all the educational exceptions.

Second, the exceptions applying to libraries, teaching, research and study under the Thai CA 1994 need to be reformed because they allow reproductions of educational materials by the users without a clear limitation as to the amount of reproduction and without prohibition on multiple reproductions. Thus, this Article recommends in section 5.2 that a clear limitation as to the amount of reproduction and a clear prohibition on multiple reproductions should be inserted into the educational exceptions in the list of permitted acts and the specific exception for libraries. This involves looking at the educational exceptions in the UK and US copyright laws, which provide a clear limitation as to the amount of reproduction. This section also recommends that the guidelines for education which reflect the interests of copyright owners and other groups of interests in the Thai education sector need to be reformulated in order to help users, students, and other relevant parties to determine the appropriate amount of reproduction under copyright exceptions.

5.1) Whether section 32 paragraph 1 should be applied as general exception?

5.1) 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.    Â
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.

imilarly, 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.¹⁴⁷Importantly, 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 Â  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.Â

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.

5.2) The insertion of the clear limitation as to the amount of reproductions

In this section, this Article recommends that the removal of the two conditions in section 32 paragraph 1 of the CA 1994 must be done together with the insertion of a clear limitation as to the amount of reproduction and a clear prohibition on multiple reproductions into the educational exceptions in the list of permitted acts in section 32 paragraph 2 and the specific exception for libraries in section 34. Specifically, such change and insertion must be made to the exception for research and study in section 32 paragraph 2(1); for teaching in section 32 paragraph 2(6); for educational institutions in section 32 paragraph 2(7)157 ; for use in examination in section 32 paragraph 2(8); and the specific exception for reproduction by libraries in section 34.

This section involves looking at the UK approach to the exceptions applying to education, library, teaching, research and study. For the US approach, I only consider the exception applying to libraries because as already discussed in the previous section, the fair use approach relating to research and study does not offer any solution to the problem in Thailand. This section divides into two parts. The first part recommends that a prohibition on multiple reproductions and clear limitation as to the amount of reproduction should be inserted into the exceptions applying to educational institutions, teaching, research and study. The second part focuses on the exception for libraries and suggests that a prohibition on multiple reproductions and a clear limitation as to numbers of reproductions should also be inserted into the exception.

5.2.1) The insertion of clear limitations to the exceptions relating to education

as a whole. This is because such application of these conditions raises the question of what amount of reproduction could be considered as ‘not in conflict with a normal exploitation of the copyright work’ and ‘not unreasonably prejudicial to the legitimate right of the copyright owner’. There is no exact meaning of the phrases in the two conditions so it depends on the assessment of the Thai court, determining case by case, whether the amounts reproduced are in conflict with a normal exploitation and unreasonably prejudicial to the legitimate right of the copyright owner.

However, the recent decisions on exceptions of the Thai courts do not seem to help in interpreting or defining the exact meaning of the two conditions. They seem instead to create more misunderstanding about the amount of reproduction under the educational exceptions. This is because none of these judicial decision of the Thai courts indicates that multiple reproductions or the reproduction of the entire materials by the users, educational institutions¹⁵⁸ and teachers are in conflict with a normal exploitation of the copyright work and unreasonably prejudicial to the legitimate right of the copyright owner. On the other hand, the Thai courts in several decisions on copyright exceptions seem to allow users or students to reproduce entire textbooks or make multiple reproductions of copyright materials where the numbers of the textbooks or materials in the library are not available to match the needs and numbers of the students in the institution.¹⁵⁹ Hence, the educational exceptions under the Thai CA 1994 are not only a problem in themselves, but also the approach of the Thai courts in several decisions which allow the multiple and systematic reproductions or the reproduction of entire works is also a significant factor undermining the effectiveness of copyright protection in the Thai education sector. The fact that multiple and systematic reproductions of copyright materials or reproduction of entire textbooks by the users, students and librarians can be done under the current educational exceptions, is evidence of inadequate protection for the economic interests of the copyright owners.

A similar approach can also be seen in the several UK guidelines which indicate that an individual may photocopy an excerpt from a book of not more than one chapter or 5 percent, whichever is the least, without infringing copyright.¹⁶⁶ For example, in order to assist users, the Publishers Association and the Society of Authors indicates in their guidelines that, for the purposes of fair dealing for research and private study only, they would normally regard the following as fair dealing, if in all other aspects the photocopying is within the scope of section 29 of the CDPA 1988: ‘…photocopying by the reader for his or her own use of: one copy of a maximum of a complete single chapter in a book, or one copy of a maximum otherwise of 5% of literary work…’.¹⁶⁷

The application of the UK approach will also help to limit the ability of the third party or photocopy shops to reproduce copyright materials under copyright exceptions. This can strengthen the copyright protection regime and provide better safeguards for the economic interests of copyright owners in Thailand. In this vein, the UK approach not only sets a clear limitation on the amount of reproduction under the copyright exception but also makes it more difficult for the photocopy shop or the third party, who merely reproduces copyright work for sale to students and researchers for the purpose of their private study, to benefit from the educational exceptions. Normally, the fair dealing exception can be available to others who are not researchers or students, because the CDPA 1988 does not require that the dealing or use which leads to copyright infringement must be undertaken by the researchers or students in order to be justified under the fair dealing exception. This means that it is possible for the students or researchers to employ or ask someone else, such as a research assistant or an agent, to act or photocopy on their behalf. Nevertheless, this possibility is very limited in practice. This is because the University of London Press case¹⁷² clearly indicates that the fair dealing exception for private study will cover only the private study of a person dealing with the copyright works for his own personal purposes and does not extend to third parties who produce copyright materials to the public for the purpose of others’ private study or for sale to students.¹⁷³ As the UK court ruled:    Â

‘It could not be contended that the mere republication of a copyright work was a “fair dealing” because it was intended for purposes of private study; nor, if an author produced a book of questions for the use of students, could another person with impunity republish the book with the answers to the questions. Neither case would, in my judgment, come within the description of “fair dealing”.’¹⁷⁴

The same approach can also be seen in Sillitoe v. McGraw-Hill Book Company¹⁷⁵ , where the defendant contended that the fair dealing exception for private study is not limited to the actual student and if a dealing is fair and for the purposes of private study, then the exception applies whether the private study is one’s own or that of someone else. The claim in this case was that the dealing was for the purpose of private study of the examinees and students who would acquire the notes. However, the court referred to the University of Londoncase and then rejected the defendants’ argument by stating that they could not avail themselves of the fair dealing exceptions for research and private study because they were not engaged in private study or research but were merely facilitating this for others.

The defendant in McGraw-Hill also contended that the study notes did not constitute infringements of copyright because there had not been a substantial reproduction of any of the works studied. The court observed that ‘substantiality is a question of fact and degree determined by reference not only to the amount of the work reproduced but also to the importance of the parts reproduced’.¹⁷⁶ After reading the quoted extracts from the original work, the court found that the notes of the defendant reproduced substantial parts of the original work, so it concluded that the defendants’ activities constituted an infringement of copyright. It is clear that taking large extracts from a work and criticising only some of them may be unfair and make the dealing an infringement rather than a permitted act.¹⁷⁷ A similar approach can also be found in Hubbard v. Vosper¹⁷⁸ , where the court ruled that reproducing any substantial part in any material form is an infringement unless the criticism was sufficient enough to make the taking of substantial extracts of the copyright materials fair dealing. The court was of the view that although the defendant had taken very substantial parts of the plaintiff’s works and put them into his book, the defendant’s treatment of them was for the purpose of criticising, so it could amount to fair dealing within the UK copyright law. These cases not only illustrate that the third party who merely reproduces copyright work for sale to students and researchers for purpose of private study could not claim fair dealing but also indicate that if the parts taken are substantial, the defendant will be guilty of infringement of copyright unless he can make the defence that his use of them is fair dealing.

It is important to note that the third party or photocopy shops are also subject to the prohibition on multiple reproductions. Pursuant to section 29(3) of the CDPA 1988, copying by a person other than researchers or students themselves is not fair dealing if the person who makes the copy knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose. In the light of section 29(3)(b), it is likely that lecturers or instructors cannot rely on the fair dealing exception for research and study when they make multiple copies of a copyright work for their students, since the wording of this provision seems to ensure that the reproduction of multiple copies cannot be justified by research and private study exceptions.¹⁷⁹ This approach was emphasized again in the Universities U.K. case¹⁸⁰ , where the Copyright Tribunal stated:

‘Materials provided by the staff for distribution to a number of students at more or less the same time would not in general amount to fair dealing because of the exception in section 29(3)(b). If a lecturer were to instruct every member of his class to make copies of the same material, we consider that this too would not be fair dealing.’¹⁸¹

The Tribunal also noted that the mere distribution of a reading list without any advice or instructions to photocopy those materials will not infringe copyright at all. But it does not allow lecturers and instructors to copy on behalf of their students, and also prohibits the making of multiple copies for others. Similarly, the British Academy also makes clear that any commercial copying or multiple copying for students in universities and colleges including course packs are not within the scope of the fair dealing exception for study and thus requires a copyright licence, such as those offered by the Copyright Licensing Agency (CLA) or the publishers.¹⁸² It also indicates that in order to fall within the scope of the fair dealing exception for private study, such use must be for one’s own study and not that of others, so that producing a school study book which has extensive quotations from a novel was not justified under this exception.¹⁸³ Â

Further, both the guidelines and the decision of the UK Copyright Tribunal also make clear that the mere reproduction of entire textbooks cannot be justified under copyright exceptions. For example, the guideline published by the British Copyright Council is clear that the copying of whole articles in periodicals or whole books will be unfair.¹⁸⁴ Similarly, the Copyright Tribunal in the Universities U.K. decision pointed out:

‘Clearly, a student who takes a photocopy for the purposes of his course of a relevant article, or a relevant short passage from a book is likely to do so in circumstances which amount to fair dealing. At the other extreme, if he were to take a photocopy of a whole textbook, we think that his dealing would not be fair, even if done for the purposes of private study.’¹⁸⁵

5.2.2) The insertion of a clear limitation to the exception for the library

This Article also recommends that a clear limitation and prohibition on multiple reproductions should be inserted into the exception for libraries in section 34 of the Thai CA 1994. Currently, the Act only provides one exception for libraries in section 34, which allows the librarian to reproduce copyright materials in two aspects. First, section 34(1) confirms that the librarian can reproduce a copyright work for use in the library or another library provided that the purpose of the reproduction is not for profit and section 32 paragraph 1 is complied with. Second, section 34(2) allows the librarian to reproduce part of a copyright work for another person for the purpose of research and study provided that section 32 paragraph 1 is complied with and the purpose of such reproduction is not for profit. This article will only focus on section 34(2) because it is closely related to the education sector since it enables a librarian to copy materials for students or users’ research and study.

There is no clear limitation as to the numbers of reproductions by librarians and no clear prohibition on multiple reproductions by the librarian in section 34(2). The section allows a reasonable reproduction of part of a work for another person for the benefit of research or study to be done by the librarian but there is no judicial decision analysing the meaning of the phrase ‘reasonable reproduction of part of a work’ and also no definition of any one of these terms. The question arises of what amount can be considered as ‘reasonable reproduction in part of a work’. Another problem is that section 34 also requires such reproduction by a librarian to comply with the two conditions in section 32 paragraph 1. This means that the main question is to determine whether the amount of reproduction or multiple reproductions by librarian is in conflict with a normal exploitation of the copyright work and whether it would unreasonably prejudice the legitimate interest of the owner of copyright. If so, then it will be prohibited by section 34. However, it is very hard to determine this question because the two conditions in section 32 paragraph 1 are problematic, as previously discussed, so by relying on the two conditions, the exception for libraries in section 34 is faced with the same problems as other educational exceptions in the Thai CA 1994. As already mentioned in the previous section, there is no definition and judicial decision on the meaning of the two conditions. Also, the Thai courts in different cases have set different standards about the amount of permissible reproduction under the copyright exceptions, so it is difficult to know what amount of reproduction should be considered as unreasonable prejudice to the legitimate interest of the copyright owners or as conflicting with a normal exploitation of the copyright work. As a result of this unclear exception and the resultant lack of clear limitations, copyright materials can be freely reproduced and distributed without the appropriate limitations. This problem illustrates again that the economic interests of copyright owners are not effectively protected by the Thai CA 1994.