Translation:Copyright Act (No. 2), 2558 BE

by National Legislative Assembly of Thailand

Seal of the Royal Command

Copyright
Act (No. 2),
2558 BE

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Bhumibol Adulyadej R
Given on the 31st day of January 2558 BE
Being the 70th year of the present reign

Phra Bat Somdet Phra Paramin Maha Bhumibol Adulyadej has issued with his pleasure a great royal command that it be proclaimed as follows:

Whereas it is appropriate to amend the law on copyright;

Therefore, he grants with his gracious pleasure, by and with the advice and consent of the National Assembly, the enactment of the following Act:

Section1.This Act is called the "Copyright Act (No. 2), 2558 BE".

Section2.This Act shall come into force upon elapse of the period of one hundred and eighty days reckoned from the date of its publication in the Government Gazette onwards.

Section3.The [following] definitions of the terms "rights management information", "technological protection measure", and "circumvention of a technological protection measure" shall be inserted between the definitions of the terms "publish" and "competent official" in section 4 of the Copyright Act, 2537 BE:

"'rights management information' means the information which indicates an author, work of authorship, performer, performance, copyright owner, or terms and conditions of use of a copyrighted work, as well as the numbers or codes representing the described information; provided that such information is attached to or appears in connection with the copyrighted work or a recording of the performance;

'technological protection measure'^[1] means a technology which is designed for preventing the reproduction of or controlling an access to a copyrighted work or performance recording and is efficiently applied to such copyrighted work or performance recording;

'circumvention of a technological protection measure' means the conduct of any act whatsoever which renders a technological protection measure ineffective".

Section4.The following text shall be inserted in the Copyright Act, 2537 BE, as its section 32/1, section 32/2, and section 32/3:

"Section32/1.The disposal^[2] of the original or copies of a copyrighted work by a person who has lawfully acquired ownership in the original or copies of the copyrighted work shall not be deemed to be an infringement of the copyright.

Section32/2.The conduct, in a computer system, upon a copyrighted work made or acquired lawfully, of any act bearing a characteristic of reproduction necessary for the use of a copy to enable the ordinary operation of a device employed by the computer system or of a process of sending a copyrighted work through the computer system,^[3] shall not be deemed to be an infringement of the copyright.

Section32/3.In the event where there is reasonable evidence that an infringement of a copyright takes place in a computer system of a service provider, the owner of the copyright may file a request with a court for an order directing the service provider to terminate^[4] such infringement of the copyright.

For the purpose of this section, the service provider means:

(1)the person who provides to another person a service of accessing the internet or enabling intercommunication in a different manner through a computer system, whether the service is provided in his own name or in the name of or in the interest of another person;

(2)the person who provides a service of storing computer data in the interest of another person.

The request under paragraph 1 must contain clear details of the following information, evidence, and application for direction:

(1)the name and address of the service provider;

(2)the copyrighted work the copyright in which is claimed to be infringed;

(3)the work which is claimed to have been made in a manner infringing the copyright;

(4)the detection process, the date and time the act is discovered, and the act or circumstances, as well as the evidence relating to the infringement of the copyright;

(5)the damage which may arise from the act claimed to constitute the infringement of the copyright;

(6)an application for directing the service provider to remove from the computer system of the service provider the work which has been made in a manner infringing the copyright, or to terminate the infringement of the copyright by any other means.

Once the court receives the request under paragraph 1, the court shall hold a hearing. If the court finds that the request contains the details under paragraph 3 completely and that there is a necessary cause for which the court should give an order granting such request, the court shall give an order directing the service provider to, within a period of time fixed by the court, terminate the act claimed to constitute the infringement of the copyright or remove from the computer system of the service provider the work claimed to have been made in a manner infringing the copyright. The order of the court can be enforced upon the service provider immediately, and this order shall be notified to the service provider without delay. In such event, the service provider shall take action against the infringer of the copyright within the period of time fixed by the court for terminating the act claimed to constitute the infringement of the copyright or for removing from the computer system the work claimed to have been made in a manner infringing the copyright.

In the event that the service provider is not the person controlling, initiating, or ordering the infringement of the copyright in the computer system of the service provider, and the service provider has already complied with the order of the court under paragraph 4, the service provider needs not to be liable for the act claimed to constitute the infringement of the copyright, which takes place before the court gives the order and after the order of the court expires.

The service provider needs not to be liable for any damage arising from his compliance with the order of the court under paragraph 4."

Section5.The following text shall be inserted in the Copyright Act, 2537 BE, as its section 51/1:

"Section51/1.A performer does have the right to present himself as the performer of his own performance and has the right to prevent the transferee of a performer's right or any other person from misrepresenting, reducing, adapting, or doing any other thing to such performance to the extent that causes injury to the good name or credit of the performer, and once the performer has died, the heir of the performer has the right to institute [at any time] throughout the term of protection of the right of the performer an action for enforcing such right, save where a different agreement has been adopted in writing."

Section6.The text of section 53 of the Copyright Act, 2537 BE, shall be repealed and replaced by the following text:

"Section53.Section 32, section 32/2, section 32/3, section 33, section 34, section 36, section 42, and section 43 shall apply mutatis mutandis to the performers' rights."

Section7.The following text shall be inserted in the Copyright Act, 2537 BE, as its Chapter 2/1 Rights management information and technological protection measures, section 53/1, section 53/2, section 53/3, section 53/4, and section 53/5:

"Chapter 2/1
Rights management information and technological protection measures

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Section53/1.The removal or alteration of [any] rights management information with the knowledge that such an act would encourage, originate, facilitate, or conceal an infringement of a copyright or performer's right shall be deemed to be an infringement of the rights management information.

Section53/2.Whoever, knowing already that a copyrighted work or a copy of such work has undergone the removal or alteration of [any] rights management information, conducts any of the following acts upon such work, shall also be deemed to commit an infringement of the rights management information:

(1)bringing or ordering to be brought into the Kingdom for disposal;^[2]

(2)communicating to the public.

Section53/3.The conduct of any of the following acts shall not be deemed to be an infringement of the rights management information:

(1)the removal or alteration of [any] rights management information by a legally empowered public officer for the execution of a law, for the necessity of national defence, for the maintenance of national security, or for other similar objectives;

(2)the removal or alteration of [any] rights management information by an educational institution, hall of archives, library, or public broadcasting entity without a view to seeking profit;

(3)the communication to the public of a copyrighted work or its copy which has undergone the removal or alteration of [any] rights management information, by an educational institution, hall of archives, library, or public broadcasting entity without a view to seeking profit.

The forms of the rights management information according to (2) and the copyrighted work or its copy which has undergone the removal or alteration of rights management information according to (3) shall be as prescribed in ministerial regulations.

Section53/4.The circumvention of a technological protection measure, or the provision of a service for [the purpose of] originating the circumvention of a technological protection measure, with the knowledge that such an act would encourage or originate an infringement of a copyright or performer's right, shall be deemed to be an infringement of the technological protection measure.

Section53/5.The conduct of the act under section 53/4 in [any of] the following cases shall not be deemed to be the circumvention of the technological protection measure:

(1)the act is necessary for the conduct of [any] act upon a copyrighted work, which enjoys an exception to infringement of copyright;

(2)for analysis of a necessary element of a computer program in its use with another computer program;

(3)for the purpose of research on, analysis of, or detection of an error of a cryptographic technology; provided that the person conducting it has lawfully acquired the copyrighted work or a copy of such work and has already made an effort in good faith to seek permission from the copyright owner;

(4)for a specific purpose of testing, inspecting, or correcting a security system of a computer, of a computer system, or of a computer network; provided that permission has been obtained from the owner of the computer, computer system, or computer network, as the case may be;

(5)for termination of the operation of a technological protection measure with respect to the collection or distribution of personally identifiable information which reflects an activity on the internet of a person accessing a copyrighted work; provided that the act must not affect access to the copyrighted work by another person;

(6)the conduct of the act by a legally empowered public officer for the execution of a law, for the necessity of national defence, for the maintenance of national security, or for other similar objectives;

(7)the conduct of the act by an educational institution, hall of archives, library, or public broadcasting entity without a view to seeking profit, in order to access a copyrighted work which cannot be accessed otherwise."

Section8.The title of Chapter 6, cases relating to copyright and performers' rights, of the Copyright Act, 2537 BE, shall be repealed and replaced by the following text:

"Chapter 6
Cases relating to copyright, performers' rights,
rights management information, and technological protection measures".

Section9.The following text shall be inserted in the Copyright Act, 2537 BE, as paragraph 2 of its section 64:

"In the event where there is express evidence that an infringement of a copyright or performer's right was committed with a will or intention to enable a wide-scale access by the public to a work which is subject to the copyright or performer's right, the court shall have the power to order the infringer to pay additional damages not exceeding twice [the amount of] the damages under paragraph 1."

Section10.The following text shall be inserted in the Copyright Act, 2537 BE, as its section 65/1:

"Section65/1.Section 63, section 64, and section 65 shall apply mutatis mutandis to the institution of cases relating to rights management information and technological protection measures."

Section11.The following text shall be inserted in the Copyright Act, 2537 BE, as its section 70/1:

"Section70/1.Anyone who commits an infringement of [any] rights management information according to section 53/1 or section 53/2 or an infringement of a technological protection measure according to section 53/4 incurs a penalty of fine from ten thousand baht to one hundred thousand baht.

If the offence under paragraph 1 is committed for a commercial purpose, the offender incurs a penalty of imprisonment from three months to two years, or fine from fifty thousand baht to four hundred thousand baht, or both such imprisonment and fine."

Section12.The text of section 75 of the Copyright Act, 2537 BE, shall be repealed and replaced by the following text:

"Section75.The things which have been made or brought into the Kingdom in a manner infringing a copyright or performer's right and the things which have been used in the commission of an offence under this Act shall all be confiscated, or in the event that the court deems it appropriate, the court may order that they be rendered useless or may order that they be destroyed, for which the expense shall be borne by the infringer."

Section13.The text of section 77 of the Copyright Act, 2537 BE, shall be repealed and replaced by the following text:

"Section77.The Director-General shall have the power to settle the offences under section 69, paragraph 1, section 70, paragraph 1, and section 70/1, paragraph 1."

Section14.In all cases of infringement of copyright or performers' rights for which criminal charges have been entered prior to the date of coming into force of this Act and which are not yet final, section 75 of the Copyright Act, 2537 BE, which has been amended by this Act, shall apply to the things which have been made or brought into the Kingdom in a manner infringing copyright or performers' rights.

Section15.The Minister of Commerce shall be in charge of this Act.

Countersignatory:
General Prayut Chan-o-cha
Prime Minister

Note: The grounds for promulgation of this Act are as follows: It is appropriate to establish protection for rights management information and technological protection measures, since rights management information and technological protection measures have nowadays been used in protecting works which are subject to copyright or performers' rights. Also, it is appropriate to establish additional exceptions to infringement of copyright or performers' rights, as well as to empower the courts to order infringers of copyright or performers' rights to pay additional damages for works subject to copyright or performers' rights which have been made accessible by the public on a wide scale and to empower the courts to order confiscating or destroying things used in the commission of offences and things made or brought in to the Kingdom in a manner infringing copyright or performers' rights. It is therefore necessary to enact this Act.

Notes

1. Literally, "technological measure".
2. Disposing or allotting of, as by gift or sale. Samnak-ngan Ratchabandittayasapha (2013) defines the Thai word chamnai (จำหน่าย) as "to sell, to allot, to give, to exchange, to assign; to remove, to take out".
3. The wording of the Thai text is extremely hard for a human being, even a native Thai, to understand. It literally translates: "The conduct [of any act] to a work which has copyright, which has been made or acquired lawfully[,] in a computer system[,] which has a characteristic of reproduction[,] which is needed to have for the bringing of a copy to use, in order that a device which is used in the computer system or the process of sending a copyrighted work through the computer system can operate ordinarily". Issues about the problematic wording in the bill of this Act were raised amongst the National Legislative Assembly at the first reading on 16 October 2014 (Samnak-ngan Lekhathikan Wutthisapha, 2014a, pp. 133–134), yet the bill was passed at the third reading on 27 November 2014 without any amendment (Samnak-ngan Lekhathikan Wutthisapha, 2014b, pp. 123–124).
4. Samnak-ngan Ratchabandittayasapha (2013) defines ra-ngap (ระงับ) as "to abate, to pacify".

Bibliography

Original

• "Phra Ratchabanyat Likkhasit (Chabap Thi Song) Phoso Song Phan Ha Roi Hasip Paet" [Copyright Act (No. 2), 2558 BE]. (2015, 5 February). Ratchakitchanubeksa [Government Gazette], 132(6A), 7–13. (In Thai).

References

• Samnak-ngan Lekhathikan Wutthisapha [Secretariat of the Senate]. (2014a). Rai-ngan Kanprachum Sapha Nitibanyat Haeng Chat Khrang Thi Sip-hok Wan Phruehatsabodi Thi Sip-hok Tulakhom Song Phan Ha Roi Hasip Chet [Proceedings of the Meeting of the National Legislative Assembly No. 16, Thursday, 16 October 2557]. Sapha Nitibanyat Haeng Chat [National Legislative Assembly]: Tuek Ratthasapha [Parliament House]. (In Thai).
• Samnak-ngan Lekhathikan Wutthisapha [Secretariat of the Senate]. (2014b). Rai-ngan Kanprachum Sapha Nitibanyat Haeng Chat Khrang Thi Yisip Chet Wan Phruehatsabodi Thi Yisip Chet Phruetsachikayon Song Phan Ha Roi Hasip Chet [Proceedings of the Meeting of the National Legislative Assembly No. 27, Thursday, 27 November 2557]. Sapha Nitibanyat Haeng Chat [National Legislative Assembly]: Tuek Ratthasapha [Parliament House]. (In Thai).
• Samnak-ngan Ratchabandittayasapha [Office of the Royal Society]. (2013). Photchananukrom Chabap Ratchabandittayasathan Phoso Song Phan Ha Roi Hasip Si [Royal Institute Dictionary, 2554 BE]. https://dictionary.orst.go.th/ (In Thai).