A PROPOSED LEGISLATIVE FRAMEWORK TO PROTECT DIGITAL COPYRIGHT FROM END USER INFRINGEMENT ON THE INTERNET IN THAILAND: A COMPARATIVE APPROACH PRASERT JARUNRATANASRI A thesis submitted in partial fulfilment of the requirements of Nottingham Trent University for the degree of Doctor of Philosophy October 2016 “This work is the intellectual property of the author. You may copy up to 5% of this work for private study, or personal, non-commercial research. Any re-use of the information contained within this document should be fully referenced, quoting the author, title, university, degree level and pagination. Queries or requests for any other use, or if a more substantial copy is required, should be directed in the owner(s) of the Intellectual Property Rights.” Abstract This thesis argues that Thailand does not have adequate specific legal remedies to protect copyright work on the internet, for example, the use of copyright content on public websites or file-sharing platforms. The aim of the study is to construct a legal framework to provide effective copyright protection remedies. In particular, more effective remedies are needed for copyright infringement by end-users using client-server and Peer-to-Peer (P2P) file sharing technology. In terms of methodology, this thesis is documentary research. The thesis employs a comparative system legal approach. It compares Thailand’s Copyright Act (No.2) B.E.2558 (CA 2015) with digital copyright enforcement systems in two foreign jurisdictions: (1) the Notice and Takedown (N&T) system of the United States; and (2) the Graduated Response (GR) of France. It examines and compares functional aspects between the CA 2015 and N&T as applied to the client/server technology. The same comparative system method is also employed with respect to digital copyright infringement under the CA 2015 compared with the GR system as it applies to P2P technology. The thesis constructs a proposal for a more effective legislative framework to protect copyright on the internet for Thailand. The thesis finds that the practical enforcement problems relating to both client/server and P2P end user infringers in the online environment is threefold. First, it involves fast widespread distribution of content. Second, there is a large number of potentially infringing internet end users. Third, there are significant difficulties in identifying an actual infringer. The author argues that Thailand’s CA 2015 court procedure is not suitable because it is slow, costly and does little to solve any of the aforementioned problems. The thesis finds that generalised characteristics of a suitable enforcement remedy should include several elements, namely, end user educative and awareness- raising functions and gradually increasing legal sanctions such as warning, fines as well as internet access restriction. It is recommended that the N&T and GR remedies in use in the US and EU respectively be adopted in Thailand with certain adjustments to suit the Thai context and replace existing unwieldy criminal and civil litigation. To this end, it is recommended that in order to overcome the difficulty of infringer identification, a new internet subscriber’s duty should be introduced in Thailand. I Acknowledgements This thesis would never have been fulfilled without the encouragement of many people. I am grateful to my supervisors, Dr. Janice Denoncourt, Dr. Elizabeth Chadwick and Professor David Ong for reading various drafts, discussing complicated issues; and providing comments, guidance and all other supports. For four years, all of these have illuminated my knowledge and the understanding of PhD study, and have greatly contributed to the success of my PhD thesis. I am privileged to work under their supervision. Many thanks are also due to academic and non-academic staff of Nottingham Law School and Graduate School for providing support academically and administratively throughout the course of my study. I would also like to thank my parents, Mr.Thongchai and Ms. Somchit Jarunratanasri, who are the most important persons in my life and who are always my motivation of all time. I thank my sister and brothers and their families who have taken good care of my parents in Thailand while I could not do so. Special thanks go to my own family, my wife Onusa Krisanalome Jarunrattanasri and my daughter Jittibhorn Jarunratanasri, who always stand beside me in any difficult situation and inspire the positive side of my life here in the UK. The language in the PhD thesis would not have been more precise and smooth without assistance from my proof reader, Mr. Alan Kitson, who is also my friend, my English teacher and my daughter’s English and Spanish teacher. I would like to thank him for all of these contributions and, many times, his encouragement. I would not have had an opportunity to study PhD and to complete the thesis without permission and financial support from the office where I work, the Thailand Office of Attorney General. I would like to express my gratitude to the office, to all Thai tax payers and to my mother land, Thailand. Finally, the most appreciation is for the Lord Buddha and his disciples (Buddhist saints) whose teaching (Dharma) enlightens my wisdom, discloses the focus on the present moment, not the past and the future, and helps me abandon ignorance and other negative thoughts. This relieves me from stressfulness and confusion, not to mention health issues such as migraine, gastritis, eye strain. I would not have made it without them and it is to them that I dedicate this thesis. II Table of Contents Abstract...........................................................................................................................I Acknowledgements.........................................................................................................II List of Abbreviations....................................................................................................VIII List of Tables.................................................................................................................XII List of Figures................................................................................................................XII Chapter 1: Introduction ................................................................................................ 1 1.1 Introduction ....................................................................................................... 1 1.2 Motivation for the Research................................................................................ 1 1.3 Aim of the Thesis ................................................................................................ 4 1.4 Objectives of the Thesis ...................................................................................... 4 1.6 State of the Field and Deficits in the Current Research and Literature and Contribution to the Knowledge........................................................................................... 13 1.7 Scope of study .................................................................................................. 13 1.7.1 End users accessing internet at home. ............................................................... 13 1.7.2 No Technological Protection Measure (TPM) .................................................... 14 1.7.3 Domestic Infringement, not International. ........................................................ 14 1.7.4 Copyright Infringement Exception Exclusion ..................................................... 14 Chapter 2: Justification for Digital Copyright Protection Remedies and Technological Aspects of Protection of Copyright on the Internet ...................................................... 15 2.1. Justification and Characteristics of Digital Copyright Protection Remedies......... 15 2.1.1 The Notice and Takedown (N&T) System ........................................................... 15 2.1.2 The Graduated Response System (GR) ............................................................... 20 2.2 Current Trends in the Field of Digital Infringement ............................................ 25 2.2.1 Client-Server Protocol ........................................................................................ 25 2.2.2 Store-and -forward System ................................................................................ 27 2.2.3 Peer-to-Peer Protocol ......................................................................................... 28 2.3 Legal Online Copyright Enforcement Techniques and Remedies ......................... 31 2.3.1 Notice and Takedown ......................................................................................... 31 2.3.2 Suspension and De-subscription of an Internet Account ................................... 31 2.3.3. Traffic Management .......................................................................................... 32 2.3.3.1. Traffic Shaping or Bandwidth Shaping .................................................................... 32 2.3.3.2. Traffic Capping or Bandwidth Capping ................................................................... 33 III 2.3.4 Blocking (IP Address, URL, Site, Port and protocol) ........................................... 34 2.3.5 Content Identification and Filtering ................................................................... 35 2.3.6 Other techniques and measures ........................................................................ 36 2.4 Infringement Detection and Identification