Page:พรบ ลิขสิทธิ์ (ฉ ๒) พศ ๒๕๕๘.pdf/2

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'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^[1] 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,^[2] 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^[3] 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.

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1. 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".
2. 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).
3. Samnak-ngan Ratchabandittayasapha (2013) defines ra-ngap (ระงับ) as "to abate, to pacify".