Thailand: Copyright (Amendement) Bill revisits ISPs

November 23 2018

In recent years, advances in technology have created changes in the manner in which consumers interact with copyrighted works. These changes have resulted in a significant increase in copyright infringement online. In response to these changes and the increase in online copyright infringement, Thailand promulgated modifications to the Thai Copyright Act. In addition, the Thai government proposed additional modifications to the Thai Copyright Act.

In 2015, two Copyright (Amendment) Acts passed, with two more drafted with likely promulgation in 2019. The two draft Copyright (Amendment) Bills currently under review modify the legal duties and liabilities of internet service providers (ISPs), an issue the earlier 2015 amendments began to address. The draft Bill was approved by the Thai Cabinet on October 16 2018 and examination by the Office of the Council of State will take place before its presentation to the National Legislative Assembly.

Prior to the 2015 amendments, the Copyright Act contained no requirements for ISPs to assist copyright holders in protecting their rights against online infringers. In addition, the Copyright Act contained no specific procedures for copyright holders to obtain such assistance from ISPs. These deficiencies in the Copyright Act adversely affected copyright owners, which in turn adversely affected commerce in Thailand.

To address the deficiencies in the Thai Copyright Act, the Copyright Act (No. 2) B.E. 2558 (2015) added Section 32/3, giving copyright holders recourse to petition competent courts for injunctions requiring ISPs, through whose services the alleged infringement occurred, to remove infringing content. Upon grant of an injunction, ISPs must remove infringing content, while the copyright holder must initiate a lawsuit against the alleged infringer within the time set by a court.

Although Section 32/3 strengthened the position of copyright holders against copyright infringement, Section 32/3 resulted in ISPs categorically refusing to cooperate with copyright owners for takedowns where no court injunctions existed. Further, Section 32/3 requires copyright holders to bring legal actions within the time set by the courts. Where copyright holders fail to bring such actions, the courts remove the injunctions along with the ISP's obligations. In practice, copyright holders face great challenges to filing lawsuits against alleged infringers, because once the ISP has discharged its obligation by taking down or blocking the allegedly infringing content, no effective means exist for copyright holders to investigate the alleged infringement.

To summarise, under the current system, takedowns of infringing content only occur after petitioning the courts. As ISPs lack other incentives to assist with stopping copyright infringement, ISPs fail to assist copyright holders. Without the assistance of ISPs, short of court actions, copyright owners seldom succeed in stopping infringement by alleged infringers. Provisions in the draft Copyright Amendment Bill will address this deficiency.

The draft Bill proposes replacing Section 32/3 with procedures requiring active participation from ISPs. Under the proposed amendments, copyright holders submit notifications in writing to the relevant ISPs. These notifications will request the ISPs to block access to infringing content. The notifications must set out details as prescribed by law such as the identity of the work infringed and the location of the infringing content.

Once the copyright holder submits the notification to an ISP, the ISP must comply with the notification and notify the alleged infringer of the copyright holder's claims. The alleged infringer can submit a response in writing. If the alleged infringer submits a response, the ISP must notify the copyright holder restoration of the alleged infringing content will take place within 15 days of the ISP's receipt of the infringer's response, unless the copyright holder commences a court action against the alleged infringer by that time.

The procedural changes in the draft Bill will make it easier for copyright holders to protect against online infringement. This welcome modification reflects Thailand's desire for the Thai Copyright Act to keep pace with the modifications in technology that make it easier for copyright infringement to exist online.

We will monitor the draft Bill's progress and provide further updates on all significant developments.