The long anticipated amendments to the Copyright Act of Thailand B.E. 2537 (1994) as embodied in the Copyright Act (No. 5) B.E. 2565 (2022) (the “Act”) were finally approved and published in the Government Gazette on 24 February 2022. The Act will take effect on 23 August 2022.

The Act aims at preparing Thailand for accession to the World Intellectual Property Organization Copyright Treaty (WCT), and bring the law up to date in dealing with online piracy and addressing various copyright issues in the digital age.

The salient provisions of the Act as follows.

1. Extended term of protection for photographic work

Under the current Copyright Act B.E. 2537 (1994), the period of copyright protection for photographic work is 50 years from the date of its creation. If the work is published during such period, the copyright term is 50 years from the date of its first publication.

In preparation for accession to WCT, the term of protection for photographic work has been amended to “the lifetime of the author plus fifty (50) years”. However, this would not affect photographic work where the protection has expired prior to 23 August 2022. In other words, it would not revive expired photographic work.

2. Broder Definition of “Service Provider” and safe harbors for Service Providers

The Act recognises various kinds of service providers and categorises them into four groups:

• intermediary service providers;
• caching service providers;
• hosting service providers; and
• data-locating service providers (i.e. search engine service providers), collectively “Service Providers”.

Different regulatory requirements are applicable for exemptions of liability for the various categories of Service Providers as well as the processes for seeking the removal of infringing content.

The Act also prescribes new safe harbor provisions that exempt Service Providers from liability for copyright infringement committed by users. The new provisions set out both general and specific requirements for Service Providers to be qualified for safe harbor under the Act.

It is a general requirement that Service Providers must explicitly announce and comply with their policies to terminate service to users who are repeat infringers. In additional to the general requirement, each type of Service Providers must also comply with specific requirements as prescribed in the Act.

The specific requirements for each type of Service Providers can be summarised in the table below.

The new safe harbor conditions under the Act are wider than the current Copyright Act where a Service Provider is only exempted from liability if it complies with the court’s injunctive order to take down the infringing material.

3. Notice-and-takedown system

The amendment under the Act aims to remove the current section 32/3 and introduce a new scheme of notice-and-takedown system without the need to obtain a court order. Section 32/3 of the Copyright Act, which was introduced in 2015, has been ineffective and impractical from the outset. It required a copyright owner to file a motion with the competent court for an injunction order against the service provider to remove alleged infringing content from a computer system. After the injunction is granted, the copyright owner is required to initiate legal proceedings for copyright infringement within the stipulated period. Otherwise, the injunction order will automatically expire.

Removing the need for a court order will ease the removal process of infringing content. Key steps of the notice-and-takedown system under the Act are as follows:

• Copyright owner sends a notice of infringement to inform the service provider about allegedly infringing content and request for removal of the work, reference source or connection, or access point to such work from their computer systems, or to cease providing access to such computer data.
• If the notice from a copyright owner meets the requirements, the service provider must remove or disable access to the allegedly infringing material without delay.
• The service provider must subsequently notify the user who posted the allegedly infringing material to allow the user to oppose the removal by submitting a counter-notice.
• If the user submits a counter-notice, the service provider then forwards a copy of the counter-notice to the copyright owner and notify the copyright owner that it will bring back the removed content or cease blocking the access within 30 days of receiving the counter-notice.
• Where there is a counter-notice, after the 30-day period ends, unless the copyright owner files a lawsuit against the alleged infringer/user, the service provider is required to restore the data or cease blocking access to it within 15 days.

4. New definition of Technological Protection Measures and infringement

The Act defines Technological Protection Measure (“TPM”) as “technology designed to protect the rights of a copyright owner or a performer; or technology efficiently used to control access to a copyrighted work or recording material of a performance”.  The new definition broadens the scope of the term to clearly cover both the rights control and access control measures.

Furthermore, the Act also amends the provisions on TPM violations. Under the Act, any act which causes access-control TPMs ineffective constitutes infringement of TPMs regardless of the intention of such person. For the circumvention of rights-control TPMs which leads to copyright infringement, the Act imposes higher criminal penalties than circumvention of access-control TPMs.

A person who infringes copyright by circumvention of rights-control TPMs shall be liable to a fine from THB20,000 up to THB200,000 and if the offence is committed with commercial purposes, the offender shall be liable to imprisonment for a term from six months up to four years or to a fine from THB100,000 up to THB800,000, or to both. For the circumvention of access-control TPMs, an offender shall be liable to a fine up to THB100,000 and if the offence is committed with commercial purposes, the offender shall be liable to imprisonment for a term up to two years or to a fine up to THB400,000, or to both.

In addition, the Act further prohibits providing services to circumvent TPMs and imposes criminal liability on anyone who manufactures, sells, distributes, or advertises products or devices intended to circumvent TPMs with the penalties of a fine up to THB100,000 and if the offence is committed with commercial purposes, the offender shall be liable to imprisonment for a term up to two years or to a fine up to THB400,000, or to both.

The long overdue amendments to the Copyright Act will serve to fortify the enforcement arsenal available to copyright owners in the digital sphere. Additionally, clearer boundaries of liability are set out for Internet service providers. Copyright owners and Internet Service Providers will no doubt acquaint themselves with these latest changes and perhaps test the limitations or efficacy of their rights and obligations. Service Providers should also review their current measures to see if their operations are in line with the amendments under the Act.

If you have any questions or require any additional information, please contact Paramee Kerativitayanan or ZICO IP (ZICOlaw (Thailand) Limited).

This alert is for general information only and is not a substitute for legal advice.