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Copyright and Educational Exceptions in Thailand the Phd Thesis Copyright and educational exceptions in Thailand: A comparative study Noppanun Supasiripongchai Doctor of Philosophy (Ph.D.) in Law University of Edinburgh 2010 Contents Contents ..................................................................................................................... II Abstract ..................................................................................................................... IV Declaration ................................................................................................................. V Acknowledgements ................................................................................................... VI Abbreviations ......................................................................................................... VII Chapter 1: Introduction ............................................................................................ 1 1.1) The role of copyright exceptions and the policy objectives ............................. 8 1.2) The development of copyright law and the exceptions in Thailand ............... 19 1.3) The prospective Thailand-US FTA Agreement .............................................. 26 Chapter 2: The problems of the educational exceptions in Thailand ................. 40 2.1) The impact of the unclear exceptions on the economic interest of copyright owners .................................................................................................................... 40 2.1.1) The ambiguity of the educational exceptions under the Thai CA 1994 .. 43 2.1.2) Problematic approaches to the exceptions by the Thai IP Court ............. 54 2.1.3) The lack of a copyright collecting society (CCS) .................................... 66 2.2) Exceptions and moral rights ........................................................................... 69 2.3) Exceptions and long-distance education ......................................................... 73 2.4) The current approach in Thailand and its problems with the three-step test .. 79 Chapter 3: The educational exceptions .................................................................. 83 3.1) Whether section 32 paragraph 1 should be applied as general exception? ..... 84 3.2) The insertion of the clear limitation as to the amount of reproductions ....... 103 3.2.1) The insertion of clear limitations to the exceptions relating to education104 3.2.2) The insertion of a clear limitation to the exception for the library ........ 114 3.2.3) The need for guidelines.......................................................................... 127 3.3) The insertion of the requirement of ‘sufficient acknowledgement’ ............. 130 3.4) The proposed changes to the exceptions for educational institutions ........... 142 II Chapter 4: Digital copyright protection I: TPMs ............................................... 161 4.1) The TPM provision and its possible impact on non-infringing uses ............ 164 4.2) Exceptions to the protection of the TPMs under the US FTAs .................... 184 4.2.1) The exceptions issued under the rule-making proceeding ..................... 184 4.2.2) The specific exceptions to the TPM provisions ..................................... 190 4.3) What should be the appropriate legal approach for Thailand? ..................... 202 Chapter 5: Digital copyright protection II: RMIs .............................................. 222 5.1) The need for the RMI provisions in the digital environment ....................... 224 5.2) The standard of the RMI provisions ............................................................. 232 5.3) The needs for changes and clarifications of the RMI provisions in the FTA 238 5.3.1) Proposed changes to the definition of RMI in the FTA ......................... 239 5.3.2) The need for the inclusion of the intent requirement ............................. 253 5.3.3) ‘Without authority’ and the exceptions ................................................. 258 Chapter 6: Copyright collecting societies (CCS) and licensing scheme system 264 6.1) The need for a copyright collecting society in the Thai education sector .... 267 6.1.1) The benefit of the CCS for users in Thailand ........................................ 267 6.1.2) The benefit of the CCS for the copyright owners .................................. 271 6.1.3) The benefit of the licensing scheme system provided by the CCS ........ 280 6.2) What should be the solution for Thailand? ................................................... 286 6.2.1) The role of the educational exceptions in supporting the CCS.............. 286 6.2.2) Regulation of the CCS ........................................................................... 290 6.2.2.1) The need to control the CCS ........................................................... 290 6.2.2.2) What should be the appropriate approach to controlling the CCS? 296 6.2.3) The need for associations representing the users and educational institutions ........................................................................................................ 308 Chapter 7: Conclusion ........................................................................................... 315 Bibliography ........................................................................................................... 332 III Abstract The thesis starts in Chapter 1 by providing the background to the development of the Thai copyright exceptions and the prospective Thai-US Free Trade Area (FTA) Agreements. In Chapter 2, I identify three major problems which arise from the inappropriate and unclear educational exceptions of the Thai CA 1994. The first problem is that the copyright law and its exceptions cannot effectively protect the economic interest of copyright owners but rather reduce the effectiveness of the copyright protection regime in Thailand as a result of three factors: the unclear educational exceptions; the problematic approaches to the copyright exceptions of the Thai IP Court; and the lack of a copyright collecting society (CCS) and a licensing scheme system in the Thai education sector. The second problem is that the Thai educational exceptions do not properly protect the moral right to be recognized as the author of the work in both the general and digital contexts. Finally, they do not support the long-distance education and lifelong learning policy of the Thai government as well as preventing educational institutions, teachers and students from the benefit of new digital technologies. The thesis recommends that the following tasks be carried out in order to solve the above problems. First, reforms must be made to the educational exceptions in the Thai CA 1994 in order to make them more restrictive and limited than at present. For instance, a clear limitation, a prohibition on multiple reproductions, and a requirement of sufficient acknowledgment must be inserted into the educational exceptions of the Thai CA 1994. Second, I recommend the introduction of digital copyright provisions on Technological Protection Measures (TPMs) and Electronic Rights Management Information (RMIs) into the Thai copyright system. This is necessary in order to ensure that educational materials can be made readily available online for distance education purposes with appropriate protection. These can also protect the economic interests of copyright owners in the digital environment by ensuring that only authorised persons access educational materials, not the public in general. Nevertheless, it is also necessary to ensure that non-infringing uses for educational purposes provided in the copyright exceptions of the Thai CA 1994 will be exempted from the violation of the prospective TPM and RMI provisions. Third, I argue that legislative reform to the educational exceptions and the introduction of the TPM and RMI provisions alone cannot completely solve the problem because the increased numbers of copyright infringements in the Thai education sector result from both the unclear exceptions and the lack of a CCS. Thus, the reforms of the exceptions and the introduction of new law must be carried out together with the establishment of the CCS and a licensing scheme system in the Thai education sector. Nevertheless, the establishment of the CCS without any legal controls upon its activities would result in further problems, so I contend that such establishment must be done together with the introduction of a regulation and a governmental body to prevent the CCS from abusing its licensing scheme or its powers in an anticompetitive way. Finally, the thesis points out several useful lessons arising from the study of the Thai copyright exceptions which could benefit global copyright protection and other countries. I have sought to state the law as it stood at the end of September 2010. IV Declaration Pursuant to Regulation 2.5 of the University of Edinburgh Postgraduate Assessment Regulations for Research Degrees: Academic Year 2009/10, I hereby certify that unless otherwise mentioned by quotation or reference, this thesis has been entirely and solely composed by me, is my own work, and has not been published or submitted for any other degree or professional qualification. Noppanun Supasiripongchai ------------------------------------- Date: 30 September 2010 Citation system of the thesis The thesis uses shortened citations in footnotes, giving just the author, year and the page numbers if available (since many online sources or materials do not give page numbers). Also, the abbreviation
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