4 March 2021
Thailand’s latest draft amendment of the Copyright Act was approved by the cabinet in late 2020 and is currently being reviewed by the parliament. Although the draft is still in the legislative process, copyright owners, legal practitioners, and most importantly, internet service providers (ISPs) should be aware of some major revisions reflected in the draft in order to prepare properly prior to the actual implementation of the law, which is very likely to be within 2021.
The draft of the new law—if enacted without major additional changes—would both adjust protection terms of some copyright works and introduce a robust regime for online copyright protection. Some of the major updates in the draft are highlighted below.
Extending the Term of Protection for Photographic Works
The draft extends the term of protection for photographic works, which under the current law is 50 years after a work’s creation or first publication, to be the lifetime of the author plus 50 years after the death of the author. This lengthening of the term would put Thailand’s protection for photographic works in line with the WIPO Copyright Treaty, which aims to enhance protection of copyright works in the digital age.
ISP Safe Harbors and Notice-and-Takedown System
Section 32/3 of the current Copyright Act provides injunctive relief against online infringement for copyright owners, together with an exemption from infringement liability for ISPs. The measure introduced by this section has proved ineffective since its implementation in 2015. The new draft therefore removes this measure and includes a new section on safe harbor for the ISPs so that they are not held liable for copyright infringement committed by their users, as long as they comply with the new measures, including implementation of the notice-and-takedown system.
In laying out these new measures, the draft redefines both “service providers” and “users” to fit the new rules. It provides an extensive definition of “service providers” and divides ISPs into four types: intermediary ISPs, caching ISPs, hosting ISPs, and search engine ISPs. In addition, its definition for “users” of ISPs includes anyone who uses an ISP’s service, whether or not payment is required. Anyone who falls under one of these definitions must be aware of their rights, responsibilities and possible liabilities.
The draft also holds that in order for ISPs to be exempted from liability for copyright infringement for their provided services, they must have explicitly announced their policies to terminate services to users found to be repeated infringers, and must have maintained compliance with these policies.
In addition to these general conditions, there are specific requirements that each ISP must meet in order to be exempted from liability. Importantly, this draft adopts the notice-and-takedown system, which is comparable to the U.S.’s Digital Millennium Copyright Act.
Under this system, copyright owners who have sufficient evidence of infringement can send a notice of infringement to hosting or search engine ISPs informing them of any allegedly infringing data. An ISP that has been notified is required to take down the allegedly infringing data, its references, and access points from their system—or block access—without delay. The ISP is required to subsequently notify the alleged infringing user who posted the material to give him or her an opportunity to oppose the removal. If the user responds with a counter-notice, the ISP must notify the copyright owner and confirm with the copyright owner whether to bring the relevant data back onto the system or maintain the takedown.
These general guidelines on the notice-and-takedown process will be clarified further in additional regulations on the exact criteria, rules, and conditions for the notice and counter-notice procedures. However, ISPs can rest assured that if they comply with these steps, they will be exempt from liability—that is, they will fall into the safe harbor.
The draft also prescribes that any person who falsely files a notice or falsely files a counter-notice is liable for any damages arising from this action.
Infringement of Technological Protection Measures
The draft broadens the definition of technological protection measures (TPMs) and enumerates TPM violations. In addition, it prohibits providing services to circumvent TPMs and imposes liability against anyone who manufactures, sells, or distributes products, equipment, or services intended to circumvent TPMs. Moreover, the draft narrows the scope of exceptions for each violation. Under the current Copyright Act, the exception to liability arising from TPM circumvention only refers to the exceptions for copyright infringement—an approach viewed as too broad and not always applicable to cases of TPM circumvention. The new draft Copyright Act thus narrows the scope of exception by specifying that the exact exceptions will be enumerated in forthcoming ministerial regulations.
What It Means for Copyright Owners and ISPs
The draft amendment to the Copyright Act will equip copyright owners with broader and more up-to-date tools to tackle online copyright infringement in the new digital landscape, where much infringement of copyright has moved into the online space. ISPs will be able to rely on the safe harbor mechanism for an exemption from liability for copyright infringement, by way of their adherence to certain compliance duties. Therefore, it is important that they—as well as copyright owners and other relevant stakeholders—keep a close eye on the new developments that may arise. By doing so, these parties will together be able to prevent online copyright infringement in Thailand and lower their risk of liability.
For further information, please contact:
Suebsiri Taweepon, Partner, Tilleke & Gibbins
suebsiri.t@tilleke.com
