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 exceptions under the Thai CA 1994,
which states that an act against a copyrighted work of the copyright owner should not be
regarded as an 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 umbrella of these sections.
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 ...’.30 The
wording ‘subject to paragraph one’ requires that the two preconditions in paragraph 1 are to be
satisfied together with the additional condition that such uses 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 ...’.31 In addition,
comparable language can be found in the exception to copyright infringement for use as
reference articulated in Section 33 as well. Therefore, if the two conditions of Section 32(1) are
unclear, this will normally affect the operation of the specific exceptions 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. 784/254232 and No. 785/254233, where the Court outlined several issues in
relation to the two conditions contained in Section 32(1). In Decision No. 784/2542, three American publishers, McGraw-Hill, Prentice-Hall 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 of the students who were using the materials purely for private
research and study without making profit from them.
The Court held that in order to benefit from the exception for research and study, the
defendant must prove several conditions. First, the act must not conflict with the normal
exploitation of the work; second, it must not unreasonably prejudice the legitimate right of the
copyright owners in an excessive manner; third, his act must be for the purpose of carrying out
research or study of the work; and finally, it must not be for the purpose of profit-seeking. In
other words, the IP Court confirmed that the two conditions of Section 32(1) are not a mere
preamble but enforceable preconditions.
The Court indicated that, in order to determine whether the reproduction of a
copyrighted work conflicts with the normal exploitation thereof and is unreasonably prejudicial
to the legitimate right of the copyright owner, it is necessary to consider the circumstances on a
case-by-case basis, involving an examination of the factors of quality and quantity. In
determining the issue of whether the quantity of duplication is a reasonable amount, the Court
acknowledged the difficulty in interpreting the two conditions. The exception allows for the
reproduction of copyright works for research or study which is not for profit, provided that the
two conditions are satisfied; but it does not set a clear limitation as to the amount of
reproduction, nor does it prohibit multiple reproductions of copyrighted materials.
Pursuant to this provision, students are allowed to photocopy or reproduce the whole or
part of copyrighted materials for the purposes of research and study which is not for profit, as
long as such reproduction does not conflict with a normal exploitation of the copyright work
and is not unreasonably prejudicial to the legitimate right of the copyright owner. The difficulty
lies in determining the permitted amount of reproduction. Similarly, the exception concerning
teaching and educational institutions does not have a clear limitation as to the quantity allowed
to be reproduced and does not prohibit multiple reproductions of copyrighted materials. No
judicial decision exists by the Thai Court on this matter. The Court implied that there is an
issue relating to the duplicate quantity in Thailand due to the difficulty in determining the
justifiable quantity of reproduction under the exception for research and study. In practice, the
interpretation of these phrases seems to be difficult for both users and the Thai court to
determine on a case-by-case basis. With such an unclear provision, it is extremely hard for users or even government officers to know how much of a copyrighted work can be legally
reproduced for research and study.
Although these decisions acknowledged the challenges of interpreting the two
conditions, they did not clarify their meaning or consider whether they could be applied as a
general exception, such as the US fair use exception – for this reason it is unusual for a
defendant to rely purely on the two conditions. With such doubts, most defendants would
normally prefer to rely on the exceptions in the list of permitted acts in Section 32(2) or specific
exceptions in Sections 33 to 43, which require such use to comply with the two conditions
together with other additional conditions. Currently, there is no judicial decision where the
court has opined on this issue. This ambiguity and the imprecise scope of the exceptions make
it more difficult to enforce the copyright law and protect copyright works in the Thai education
sector, especially where copyrighted materials are made available on the mass education market.
Furthermore, users thus rely on this ambiguity and the imprecise scope of the exceptions and
assume that they can reproduce the entire books or materials under the exceptions. This leads to
an increased number of copyright infringements in the Thai education sector. As a result, the economic interests of copyright owners cannot be secured and the goal of the copyright law,
which is to encourage greater creativity in Thai society, cannot be achieved. Thus, these unclear
exceptions need to be clarified to ensure that the scope of copyright exceptions and infringement
is clear and certain, in order for copyright owners to receive an economic return on their
investment.
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 exceptions under the Thai CA 1994,
which states that an act against a copyrighted work of the copyright owner should not be
regarded as an 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 umbrella of these sections.
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 ...’.30 The
wording ‘subject to paragraph one’ requires that the two preconditions in paragraph 1 are to be
satisfied together with the additional condition that such uses 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 ...’.31 In addition,
comparable language can be found in the exception to copyright infringement for use as
reference articulated in Section 33 as well. Therefore, if the two conditions of Section 32(1) are
unclear, this will normally affect the operation of the specific exceptions 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. 784/254232 and No. 785/254233, where the Court outlined several issues in
relation to the two conditions contained in Section 32(1). In Decision No. 784/2542, three American publishers, McGraw-Hill, Prentice-Hall 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 of the students who were using the materials purely for private
research and study without making profit from them.
The Court held that in order to benefit from the exception for research and study, the
defendant must prove several conditions. First, the act must not conflict with the normal
exploitation of the work; second, it must not unreasonably prejudice the legitimate right of the
copyright owners in an excessive manner; third, his act must be for the purpose of carrying out
research or study of the work; and finally, it must not be for the purpose of profit-seeking. In
other words, the IP Court confirmed that the two conditions of Section 32(1) are not a mere
preamble but enforceable preconditions.
The Court indicated that, in order to determine whether the reproduction of a
copyrighted work conflicts with the normal exploitation thereof and is unreasonably prejudicial
to the legitimate right of the copyright owner, it is necessary to consider the circumstances on a
case-by-case basis, involving an examination of the factors of quality and quantity. In
determining the issue of whether the quantity of duplication is a reasonable amount, the Court
acknowledged the difficulty in interpreting the two conditions. The exception allows for the
reproduction of copyright works for research or study which is not for profit, provided that the
two conditions are satisfied; but it does not set a clear limitation as to the amount of
reproduction, nor does it prohibit multiple reproductions of copyrighted materials.
Pursuant to this provision, students are allowed to photocopy or reproduce the whole or
part of copyrighted materials for the purposes of research and study which is not for profit, as
long as such reproduction does not conflict with a normal exploitation of the copyright work
and is not unreasonably prejudicial to the legitimate right of the copyright owner. The difficulty
lies in determining the permitted amount of reproduction. Similarly, the exception concerning
teaching and educational institutions does not have a clear limitation as to the quantity allowed
to be reproduced and does not prohibit multiple reproductions of copyrighted materials. No
judicial decision exists by the Thai Court on this matter. The Court implied that there is an
issue relating to the duplicate quantity in Thailand due to the difficulty in determining the
justifiable quantity of reproduction under the exception for research and study. In practice, the
interpretation of these phrases seems to be difficult for both users and the Thai court to
determine on a case-by-case basis. With such an unclear provision, it is extremely hard for users or even government officers to know how much of a copyrighted work can be legally
reproduced for research and study.
Although these decisions acknowledged the challenges of interpreting the two
conditions, they did not clarify their meaning or consider whether they could be applied as a
general exception, such as the US fair use exception – for this reason it is unusual for a
defendant to rely purely on the two conditions. With such doubts, most defendants would
normally prefer to rely on the exceptions in the list of permitted acts in Section 32(2) or specific
exceptions in Sections 33 to 43, which require such use to comply with the two conditions
together with other additional conditions. Currently, there is no judicial decision where the
court has opined on this issue. This ambiguity and the imprecise scope of the exceptions make
it more difficult to enforce the copyright law and protect copyright works in the Thai education
sector, especially where copyrighted materials are made available on the mass education market.
Furthermore, users thus rely on this ambiguity and the imprecise scope of the exceptions and
assume that they can reproduce the entire books or materials under the exceptions. This leads to
an increased number of copyright infringements in the Thai education sector. As a result, the economic interests of copyright owners cannot be secured and the goal of the copyright law,
which is to encourage greater creativity in Thai society, cannot be achieved. Thus, these unclear
exceptions need to be clarified to ensure that the scope of copyright exceptions and infringement
is clear and certain, in order for copyright owners to receive an economic return on their
investment.
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