concerning the first factor, one of the key issues arises from the two conditions set out in section 32(1) - the mainspring of the whole body of the exceptions under the Thai CA 1994, which states that an act against a copyrighted work of the copyright owner should not be regarded as infringement of copyright if two conditions are met. The first condition is that the action or reproduction must not conflict with a normal exploitation of the copyrighted work by the copyright owner, and the second condition is that the action or reproduction must not unreasonably prejudice the legitimate right of the copyright owner. These two conditions are most important because all educational exceptions in the list of permitted acts in section 32(2) (such as the exceptions for research and study in paragraph 2(1); for teaching in paragraph 2(6); for educational institutions in paragraph 2(7); and for use in examinations in paragraph 2(8); as well as the specific exception for use as reference in section 33 and for library use in section 34) require that the two conditions be satisfied together with other additional conditions, in order to be exempted from copyright infringement under the under the umbrella of these.
For instance, section 32(2) stipulates: ‘subject to paragraph one, any act against the copyright work in paragraph one is not deemed an infringement of copyright; provided that the act is one of the following: (1) research or study of the work which is not for profit …’. The wording ‘subject to paragraph one’ requires that the two preconditions in paragraph i are to be satisfied together with the additional condition that such sues must be for the purpose of research or study which is not for profit in order to be exempted. It also applies to the rest of the educational exceptions contained in the list of permitted acts under section 32(2). Similarly, most specific exceptions in the CA 1994 require the two conditions in section 32(1) to be satisfied, together with other additional conditions in order for the acts to be exempted under these specific exceptions. For instance, section 34 provides that ‘a reproduction of a copyright work by a librarian … is not deemed an infringement of copyright; provided that the purpose of such reproduction is not for profit and section 32(1) is complied with …’. In addition, comparable language can be found in the exception to copyright of section 32(1) are unclear, this will normally affect the operation of the specific exception which rely on them.
Before 1999, there had been a debate on the issue of whether section 32(1) should be regarded as a mere preamble or as enforceable preconditions. This issue was resolved by several decisions of the supreme court and the IP court, which held that the two conditions were indeed enforceable preconditions. It is also important to mention the following IP court decisions No. 784/2542 and No. 785/2542, where the court outlined several issues in relation to the two conditions in section 32(1). In decision No. 784/2542, three American publishers, McGraw-Hill, Prentice-Hill and International Thomson Publishing. Were joint plaintiffs with the public prosecutor. The plaintiffs claimed that the defendant, who ran a shop offering a photocopy service, infringed their copyrights on the textbooks and requested a heavy penalty to be imposed on him for copyright infringement. The defendant admitted unauthorized reproduction, but relied on the exception for research and study in section 32(2)(1) as an agent