23 September, 2018
The previous Thai Copyright Act presented hurdles to making copyrighted works accessible to disabled persons. For example, producing an audio version of a novel for use by the blind without the copyright owner’s consent would have been deemed copyright infringement. In 2015, the Act was amended to include a new exception to copyright infringement for disabled persons. Section 32 (9) of the amended Act provides an exception to copyright infringement for "reproduction or adaptation of copyrighted works for the benefit of the blind, the deaf, or people with mental retardation or other disabilities, provided it is not done for profit."
On 21 April 2017, the National Legislative Assembly of Thailand agreed to Thailand’s membership in the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled ("Marrakesh Treaty"). Although section 32(9) of the existing Thai Copyright Act includes an exemption for disabled persons to reproduce or adapt copyrighted work, Thailand must bring the Act in line with the Marrakesh Treaty. The Proposed Amendment to the Copyright Act ("Amendment") will replace section 32 (9) with section 32/4. The Amendment includes making available copyrighted work to disabled persons in accessible-format copies to be provided by an "authorized entity." Under the Marrakesh Treaty an "authorized entity" means "an entity authorized or recognized by the government to provide education, instructional training, adaptive reading, or information access to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organization providing the same services to beneficiary persons as one of its primary activities or institutional obligations." According to the Department of Intellectual Property ("DIP"), a definition of "authorized entity" is to be detailed in a forthcoming Notification of the Ministry of Commerce.
The new section 32/4 lays down basic considerations that reproduction, adaptation, and/or the making available of copyrighted works to disabled persons must:
- be done only by an authorized entity;
- be for the benefit of disabled persons who cannot access the copyrighted work due to their necessity and impairment as specified by the forthcoming Notification of the Ministry of Commerce;
- be done only on a non-profit basis;
- comply with paragraph 1 of section 32 of the Thai Copyright Act (i.e. there is no conflict with the copyright owner’s normal exploitation of the copyrighted work and no unreasonable prejudice to the copyright owner’s legitimate right); and
- be done where the copyrighted work provided by the authorized entity is available to the public and legitimately obtained (i.e. through purchase or license).
Although this Amendment to the Copyright Act was submitted to His Majesty the King for final approval before being announced in the Government Gazette and becoming law, many associations, such as the Publishers and Booksellers Association of Thailand, the Writers' Association of Thailand, and the National Federation of Motion Pictures and Contents Association, disagree with the terms.
Among others reasons for such disagreement, some view the proposed Amendment to be broader than required by the Marrakesh Treaty. That is, the Amendment should be limited to "print disabled" persons as per the Marrakesh Treaty, not all disabled persons.
The associations assert the methods of reproducing, adapting, or making available copyrighted works should be clearly detailed, and that there should be a time limit for exemptions granted to qualified disabled persons.
For further information, please contact:
Say Sujintaya, Partner, Baker & McKenzie
say.sujintaya@bakermckenzie.com
