APAA e-Newsletter (Issue No. 38, December 2023)

AI and Thai IP Law

Praewpan Hinchiranan (Am) - Thaniya Anuchitolarn (Lexel)


Although Thailand does not have a specific law/regulation regulating AI at the moment, and the provisions of the current Thai IP law do not specifically address IP issues where AI is concerned, certain provisions might be applicable to AI as provided below.

Copyright: The recent generative AI tools have made it possible for anyone to accessibly use such a tool to generate content that falls within the protection of copyright law such as literary, musical, artistic, photographic, audiovisual works, etc. As a result, copyright infringement arising from such generative AI tools has become one of the most discussed cases in Thailand.

Under the Thai Copyright Act, the reproduction, adaptation, or communication of a copyrighted work without prior consent/authorization from the copyright owner would be deemed as copyright infringement which is punishable by criminal offense. The plaintiff must prove beyond a reasonable doubt to the court that the defendant has the criminal intent or foresight that an infringement could occur.

For generative AI tools, when a user inserts a prompt (i.e., text, image, etc.), the original copyrighted work may be reproduced and/or adapted upon the user entering a prompt that provides instructions to the AI tool to generate an output as instructed. Depending on such prompts, the output generated can either contain copyrighted elements, be a whole duplicate of the original copyrighted work, or be a derivative work of the original copyrighted work. In case that AI-generated output contains a substantial part of the original copyrighted work, evidence such as the fact that the AI tool user provides a prompt specifying the name of the original artist could help the court to determine that the defendant has the intent to infringe on others’ copyrighted work. In case that AI-generated output merely imitates the style of an original copyrighted work, or the plaintiff is unable to present to the court which substantial part of the work has been infringed upon, it is unlikely that the AI-generated output would be a copyright infringement.

Moreover, AI creators/providers/developers could also be held liable for copyright infringement as a supporter of such offense under the current Thai IP law. Being a supporter of a crime shall be punishable by two-thirds of the punishment for the said offense.

Trademark: Under the Thai Trademark Act, unauthorized use of identical or confusingly similar mark could constitute trademark infringement. In terms of evidence and proof of the intention to commit an act of infringement, it is possible that trademark infringement cases involving the use of AI could be quite similar to trademark infringement cases that do not involve AI.

Patent: Any person using, manufacturing, or selling or having in possession for sale of any patent-protected inventions or designs without prior authorization from the right holder could be punishable by a criminal offense under the Thai Patent Act.

Where the use of an AI tool has resulted in an infringement of others’ registered patent, the user of the AI tool could potentially be committing patent infringement. However, in certain cases, it is possible that infringement occurs by AI with no human intervention or control. Under these situations, it could be difficult to claim that the defendant has a criminal intention that constitutes an infringement.

Based on the above IP issues, we anticipate that future amendments of Thai IP laws and future court decisions in Thailand would help to provide further clarity on the legal protection that would be available for IP-protected works where the use of AI is involved.

Nonetheless, based on the potential of AI technology, the legal issues will go beyond IP law. Several concerns have been made with respect to, among other, the disruption AI in relation to labor workforce, ethics of AI use, potential harm in applying AI decisions without human oversight/intervention, privacy and confidentiality violations, and concerns of product safety and consumer protection with respect to AI products.