Update on the Draft Amendments to the Thai Copyright Act
Tanakrit Tangburanakij & Praewpan Hinchiranan, Baker McKenzie (Bangkok Office) (Thailand)
Since section 32/3 of the current Thai Copyright Act – which was intended to serve as a “notice and take down” provision – was introduced in 2015, copyright owners have found that it is difficult and impractical to obtain orders against infringers. The infringers are anonymous and as Thailand does not have a John Doe order, the case would not be able to able to proceed further. In addition, section 32/3 requires copyright owners who wish to file a petition to the court for suspension/removal of infringing content to proceed with full court procedures. This is time consuming, especially taking into account the speed at which infringing content spreads online. Accordingly, the copyright owner would not be able to proceed with a lawsuit against the infringers, as required by section 32/3, within the period of time ordered by the court to suspend/remove the infringement.
The above difficulties have been raised by copyright owners and the Thai Department of Intellectual Property (DIP). The DIP has attempted to update the current Copyright Act by replacing section 32/3 with a new provision on ‘notice and take down’ which is heavily based on the U.S. Digital Millennium Copyright Act. The draft amendments to the Copyright Act (“Draft Amendment”), which include a provision on the limitations of liability for service providers for copyright infringement, have gone through many legislative stages of revision since 2018. In September 2020, the Thai Cabinet approved the Draft Amendment as proposed by the DIP, and the House of Representatives appointed the Ad-hoc Committee on the Draft Copyright Act (“Committee”) in January 2021 to consider the Draft Amendment. Based on the Committee’s meetings, there have been several updates to the Draft Amendment on the limitations of liability for service providers. Key updates include:
• The definition of ‘service provider’ has been updated to describe an intermediary who transmits computer data or other communication access to a computer system which includes a service provider providing system caching, hosting, and information location tools, whether on its own behalf, in the name of, or for the benefit of another person. The said definition was developed based on the definition of ‘service provider’ under the Computer Crime Act but expanded upon to include 4 additional classifications of service providers.
• Although safe harbor from copyright infringement for service providers has been introduced to the Draft Amendment, the requirements for service providers to enjoy the said safe harbor based on their classification (namely, intermediary, caching, hosting, and information location tools) and their performance have been updated.
• “notice and take down” for copyright infringement occurring on a system or computer network, it will be limited to two classifications of service providers, namely, hosting and information location tools.
• Once the copyright owner finds the infringing content, he can send a notice to the service provider via an electronic system, together with the required details. In addition, the copyright owner shall take into account the provisions on exceptions to copyright infringement.
Since the Draft Amendment is still under the Committee’s consideration, it is still subject to change. In addition, due to the current situation of the COVID-19 pandemic, the date as to when the Draft Amendment will become effective may be impacted.