Reproduction or adaptation of copyrighted work for the disabled
According to the Act, the reproduction or adaptation of a copyrighted
work for the benefit of the disabled, such as, blind, deaf, the
cognitively impaired, or those with other disabilities would be
permitted. However, any reproduction or adaptation must not be done
with the intention of earning a profit.
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Section 74 of the Copyright Act provides that if an offense was
committed by a juristic person, every director or manager would be
regarded as a joint offender with the juristic person, unless they could
prove that the act of the juristic person was done without their
knowledge. However, in May 2013, the Constitution Court interpreted
this particular section as being in violation of section 39 of the Thai
Constitution, which provides that the accused or defendant in a
criminal case shall be deemed innocent unless proven otherwise.
As a result of such interpretation, even though section 74 of the
Copyright Act has not yet been replaced or repealed, as all
government enforcement officers follow the Constitution Court’s
rulings, they are now unlikely to pre-emptively take action against
directors and managers.
8.4 Plant Varieties
The Plant Varieties Protection Act, B.E. 2452 (1999) defines a plant
variety as “a group of plants with the same or similar genetics and
botanical description, with constant and fixed specific qualities. The
subject must be different from any other group of plants of the same
kind. This includes plant stems that can be propagated to obtain a
group of plants with those qualities.” The Plant Varieties Act goes on
to define certain set features that constitute a plant variety, such as
morphology, physiology, or other properties that are the result of the
genetic nature specific to one plant variety. It should be noted that
novelty requirements must be met.
Priority date can be claimed based on an overseas application to
register a new plant variety, provided that an application is filed in
Thailand within one year of the overseas application. This provision
only applies to applications filed in countries that would extend the
same rights to Thai nationals. The period of protection can last from
12 to 27 years, depending on the plant variety. The validity of the
certificate of registration of a new plant variety begins on the date on
which the certificate is issued. Annual fees must be paid to maintain
the registration. Rights holders can permit anyone to use their rights
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and can assign the rights to others. Assignment or permission to others
must be made in writing and lodged with the competent official. The
holder of the rights in a new plant variety has the sole right to
produce, sell or dispose of, and import or export the new plant variety,
as well as to hold the propagating material of the new plant variety for
the purpose of doing any of those acts.
A person that holds the certificate of registration for a plant variety is
expected at some point to sell the propagating material for the plant
variety, or sell, at a reasonable price, enough of the plant variety to
satisfy public demand in Thailand. If the certificate holder has not
done so within three years of obtaining the certificate, other parties
may apply for and obtain the rights to that plant variety. The penalties
for infringement of the rights to a registered plant variety are a term of
imprisonment not exceeding two years, a fine not exceeding 400,000
baht, or both. The same penalties apply to anyone who violates
community rights to a local indigenous variety or who fails to obtain
permission in respect to general indigenous and forest plant varieties.
The penalties for forging a plant variety registration mark are
imprisonment for six months to five years, and a fine from 20,000 to
200,000 baht.
8.5 Layout Designs of Integrated Circuits
The Layout Design of Integrated Circuits Act, B.E. 2543 (2000)
defines integrated circuits as “ready or pre-ready products that have
electronic functionality, either alone or with other products, and that
are composed of electronic-pulsing parts and connecting parts that
wholly or partly lay upon or within the same product with semiconductor
material.” Layout designs are defined as a “...pattern, chart,
or picture that is created in any form to show the overview of
integrated circuits in three dimensions.” In order to be eligible for
registration, the layout design of an integrated circuit must be
generally new, i.e. unknown to the integrated circuit industry.
Protection under the Integrated Circuits Act is only available for a
layout design that has been registered in Thailand. Therefore, a
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foreign layout design has no protection under Thai law unless it is
registered in Thailand as well. Moreover, if the layout design has
neither been registered nor exploited within 15 years from its creation,
it is not eligible for registration in Thailand. If a layout design has
already been commercially exploited, the applicant must file an
application in Thailand within two years from the first date of
exploitation in order to qualify for registration in Thailand.
A layout design registration, once conferred, is valid for 10 years from
the filing date or the date of its first exploitation, whichever is earlier.
The license agreement and assignment of a layout design registration
must be in writing and registered in compliance with the requirements
and procedures stipulated. The penalty for infringement of the rights
to a registered layout design is a fine not exceeding 500,000 baht.
8.6 Trade Secrets
Generally, there are two types of trade secrets protected under the
Trade Secrets Act, B.E. 2545 (2002): information and data or test
results.
“Information” includes formulae, technical procedures and designs,
compiled or assembled works, or business operation methods that the
proprietor normally preserves from disclosure. The information must
have commercial value and must not yet be widely known or known
by people in the trade. The proprietor of the information must have
taken lawful steps appropriate to the situation to keep the information
secret. Data or test results require considerable effort to prepare and,
in general, are submitted to state agencies as a condition upon
approval being granted to import, export, or sell drugs or new
agricultural chemical substances.
Generally, infringement under the Trade Secrets Act is subject to civil
action. Only in certain circumstances will the infringement also be
subject to criminal action. All infringement, both civil and criminal,
can be submitted to the Trade Secrets Committee for conciliation or
settlement out of court.
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The plaintiff or injured party eligible to bring a lawsuit for
infringement of a trade secret is the person who has legitimate control
of the trade secret at the time of the infringement. The proprietor of
the trade secret is not eligible, unless the controller and the proprietor
are one and the same person. The infringement of a trade secret
entitles the proprietor to bring a lawsuit against the infringer for
compensation. Compensation includes the actual damages sustained
by the plaintiff, and the legal fees and expenses required to prosecute
the case. Infringement can also be subject to criminal penalties. The
penalties are imprisonment of one year or a fine of up to 200,000 baht,
or both.
8.7 The Intellectual Property and International Trade
Court
Prompted in part by its desire to tighten intellectual property rights
protection, the government passed the Intellectual Property and
International Trade Court Establishment Act (the “IP/IT Act”) in
October 1996. The IP/IT Act laid out the framework for the
Intellectual Property and International Trade Court (the “IP/IT
Court”), which was established on 1 December 1997.
Under the IP/IT Act, the IP/IT Court has exclusive jurisdiction over
intellectual property and international trade cases covering such
subject matter as copyrights, trademarks, patents, trade secrets,
international sales, financial instruments, and international carriage of
goods, among others, and is responsible for both civil and criminal
cases.
The government believed that a specialized judicial tribunal was
required because intellectual property and international trade cases
generally involve more complex technical issues than other criminal
and civil cases. Proponents of the IP/IT Act also felt that such cases
should be considered by judges with expertise in intellectual property
and international trade. The IP/IT Court is dedicated to resolving
international trade disputes efficiently, promoting technology
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transfers, and ensuring justice in cases of intellectual property rights
violations.
The IP/IT Court observes different procedures from those set forth in
Thailand’s civil and criminal procedural codes. For the purpose of
expediency and the fairness of proceedings, the Chief Justice of the
IP/IT Court is empowered, subject to the approval of the President of
the Supreme Court, to issue rules of the IP/IT Court that are not in
accordance with the procedural rules of other courts, if such rules do
not impair the defendant’s right of defense in a criminal case.