Golden Gate University School of Law GGU Law Digital Commons Theses and Dissertations Student Scholarship Spring 2006 A Comparative Analysis of the Copyright Law of the Kingdom of Thailand and the Copyright Law of the United States of America : Within the Context of International Trade Sutee Iamcharoenying Golden Gate University School of Law Follow this and additional works at: http://digitalcommons.law.ggu.edu/theses Part of the Intellectual Property Law Commons, International Law Commons, and the International Trade Law Commons Recommended Citation Iamcharoenying, Sutee, "A Comparative Analysis of the Copyright Law of the Kingdom of Thailand and the Copyright Law of the United States of America : Within the Context of International Trade" (2006). Theses and Dissertations. Paper 28. This Dissertation is brought to you for free and open access by the Student Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. SCHOOL OF LAW S.J.D. DISSERTATION A COMPARATIVE ANALYSIS OF THE COPYRIGHT LAW OF THE KINGDOM OF THAILAND AND THE COPYRIGHT LAW OF THE UNITED STATES OF AMERICA I~ I (WITHIN THE CONTEXT OF INTERNATIONAL TRADE) SUBMITTED BY DO f\!nT REMOVE FROM LIBRARY SUTEE IAMCHAROENYING LAVV SEP 1 3 2007 GOLDEN GATE UNIVERSITY A DISSERTA nON FOR THE COMPLETION OF THE SJ.D. PROGRAM IN INTERNATIONAL LEGAL STUDIES SAN FRANCISCO, CALIFORNIA, U.S.A. SPRING 2006 ii This dissertation is lovingly dedicated to my dear father and mother. Without their support and encouragemen0 none of my advanced legal studies in the United States would have been possible. iii ACKNOWLEDGEMENTS I would like to thank many persons who have been involved in the initiation and the completion of this dissertation and acknowledge my indebtedness to them. To the Distinguished Professor Dr. Sompong Sucharitkul, to Professor Dr. Christian N Okeke, and to Professor Jon H Sylvester, in particular, I wish to extend my profound gratitude for their insightful comments and guidance throughout my advanced legal research and studies. I have depended largely on the splendid services of Golden Gate University Law Library staff, especially Mary Anne Gerber and Michael Daw. I also would like to express my grateful thanks to Richard Ste1lina, who devoted laborious hours proofreading these many pages. Finally, I thank my parents, to whom I am heavily indebted, for all the love, support, and encouragement they have showered upon me. iv DISSERTATION COMMITTEE Professor Dr. Sompong Sucharitkul, D.C.L. (Oxon) Associate Dean and Distinguished Professor of International and Comparative Law, Golden Gate University School of Law Professor Dr. Christian N. Okeke, Doctor in de Rechts Geletterdheid (Amsterdam) Professor ofInternational Law, Golden Gate University School of Law Professor Jon H. Sylvester, J.D. (Harvard University), M.J. (University of California) Associate Dean and Professor of Law, Golden Gate University School of Law v ABSTRACT Over the past twenty years, the Kingdom of Thailand's role in international trade has considerably increased. Concurrently, Thailand has been rapidly absorbing and utilizing advanced technology from the developed countries. Along with these favorable consequences, have come concerns regarding intellectual property protection. In fact, intellectual property matters have become one of the focal concerns for the United States, Thailand's most important trading partner. The United States has proclaimed that, to compete with other players in the world, Thailand must develop a sound copyright law reform to sustain its socio-economic development. The fact that international copyright norms have been evolving may seriously complicate the determination of the extent of copyright protection in any given case. Those norms are not truly universal. Some countries abide by the latest treaty standards, while others adhere only to the lower standards of previous treaty texts or reserve certain rights permitted by the treaties. Therefore, foreign copyright owners must pay particular attention to the copyright law of the forum state where they are claiming copyrights. Whether a private right, assertable in court, can be derived directly from a copyright or neighboring rights treaty, depends in each case on the nature of the treaty and the constitutional law traditions of the country concerned with protecting its copyrights. Some countries view treaties as self-executing; i.e., a directly applicable source of rights to private parties. In contrast, other countries hold that treaties are not self-executing; consequently, private actions must be founded on domestic legislation that implements the treaty. One of most interesting topics is the anti-circumvention of technological measures for protecting copyrighted works. The legal issue of this topic is currently vi dealt with by the WIPO Copyright Treaties and the WIPO Performances and Phonograms Treaty. Circumvention of technological measures creates a precarious atmosphere for both owners and users of copyrighted works because it can hinder the legitimate use of copyrighted works from the users under "the exception of copyright" doctrine especially when those works are in digital form. Legal machinery is important for the copyright community in its effort to balance individual rights and public good. The author will discuss the comprehensive and systemized legal protection of the United States copyright law as it protects technologies that control access of copyrighted works, and present it as a viable example, which Thailand may or may not consider incorporating into its legal framework. This dissertation primarily surveys the law of copyright of the United States of America and the Kingdom of Thailand; however, the copyright laws of other countries are also examined as appropriate. Throughout the dissertation, the author presumes that the trend towards greater international protection of copyright will continue. There should, however, be a search for ways and means to improve the developmental process in developing countries while providing, at the same time, the sustainability of a sound international copyright protection system. The author argues that a few relatively modest and realistically implementable changes to international copyright law could help address some of the legitimate concerns of copyright critics while preserving the basic structure of domestic laws, which copyright proponents argue have well served many of the world's peoples. Thus far, there are no signs that between developed and developing countries the battle on the issue of copyright protection is over. vii The opinions, figures and estimates set forth in this dissertation are the responsibility of the author, and do not engage the liability of any of the organizations, or individuals mentioned in this work. ****** viii TABLE OF CONTENTS Page ACKNOWLEDGEMENTS ............................................................................................................ III ABSTRACT ......................................................................................................................................... v CHAPTER I:......................................................................................................................................... 1 INTRODUCTION ............................................................................................................................... 1 § 1.1. SIGNIFICANCE OF COPYRIGHT ................................................................................................... 11 § 1.1.1. History o/Copyright Law ................................................................................................. 13 § 1.1.2. Development o/U.s. Copyright Law ................................................................................ 17 § 1.1.3. Development o/Thai Copyright Law ............................................................................... 27 § 1.2. COPYRIGHT PROTECTION UNDER THE BERNE CONVENTION ..................................................... 36 § 1.2.1. Historical Perspective o/the Berne Convention .............................................................. 36 § 1.2.2. Subsequent Revisions o/the Berne Convention. ............................................................... 39 § 1.2.2.1. The Berne Convention as Revised in Berlin in 1908 ................................................................ 39 § 1.2.2.2. The Berne Convention as Revised in Rome in 1928 ................................................................ 41 § 1.2.2.3. The Berne Convention as Revised in Brussels in 1948 ............................................................ 42 § 1.2.2.4. The Berne Convention as Revised in Stockholm in 1967 ........................................................ 42 § 1.2.3. The 1971 Paris Act o/the Berne Convention ................................................................... 43 § 1.2.3.1. Overview .................................................................................................................................. 43 § 1.2.3.2. Eligible Authors ....................................................................................................................... 44 § 1.2.3.3. Protected Works ....................................................................................................................... 45 § 1.2.3.4. Rights ......................................................................................................................................