Translation:Copyright Act (No 2), 2558 BE

by National Legislative Assembly of Thailand (2014)

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Seal of the Royal Command

Copyright
Act (No 2),
2558 BE

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Bhumibol Adulyadej R
Given on the 31st day of January 2558 BE
Being the 70th year of the present reign

Phrabat Somdet Phra Paramin Maha Bhumibol Adulyadej gives a great royal command by which He orders with His pleasure that it be announced as follows:

Whereas it is appropriate to amend the law on copyright;

Therefore, He grants with His gracious pleasure, by and with the advice and consent of the National Legislative Assembly, the enactment of the following Act:

Section1.This Act is called the Copyright Act (No 2), 2558 BE.

Section2.This Act shall come into force upon expiry of the period of one hundred and eighty days from the day of its publication in the Royal Gazette onwards.

Section3.The [following] definitions of the terms “rights management information”, “technological protection measure”, and “circumvention of a technological protection measure” shall be inserted between the definitions of the terms “publish” and “competent official” in section 4 of the Copyright Act, 2537 BE:

“‘rights management information’ means the information which indicates an author, work of authorship, performer, performance, copyright owner, or terms and conditions for use of a copyrighted work, as well as the numbers or codes representing the said information, when this information is attached to or appears to be connected with the copyrighted work or a recording of the performance;

‘technological protection measure’^[1] means a technology which is designed for preventing the reproduction of or controlling an access to a copyrighted work or performance recording and is efficiently applied to such copyrighted work or performance recording;

‘circumvention of a technological protection measure’ means the conduct of any act which renders a technological protection measure ineffective”.

Section4.The following text shall be inserted in the Copyright Act, 2537 BE as sections 32/1, 32/2, and 32/3:

“Section32/1.Distribution of the original or copies of a copyrighted work by a person who has lawfully acquired the ownership over the original or copies of such copyrighted work shall not be deemed to be infringement of copyright.

Section32/2.The conduct in a computer system of any act characteristic of reproduction upon a copyrighted work made or acquired lawfully shall not be deemed to be infringement of copyright, if it is necessary for the use of a copy to enable the normal operation of a device employed by the computer system or of a process of sending a copyrighted work through the computer system.^[2]

Section32/3.In the event where reasonable evidence shows that there is infringement of copyright in a computer system of a service provider, the copyright owner may request a court to order the service provider to terminate such infringement of copyright.

For the purpose of this section, the service provider refers to—

(1)the person who provides to other persons a service of accessing the internet or enabling them to contact each other in a different manner through a computer system, whether the service is provided in his own name or in the name of or in the interest of another person;

(2)the person who provides a service of storing computer data in the interest of another person.

The request under paragraph 1 must contain clear details of the following information, evidence, and application for the order:

(1)the name and address of the service provider;

(2)the copyrighted work claimed to have been subjected to infringement of copyright;

(3)the work claimed to have been made in a manner infringing copyright;

(4)the detection process, the date and time of discovering the act, and the act or circumstances, as well as the evidence relating to the infringement of copyright;

(5)the damage which may arise from the act claimed to constitute the infringement of copyright;

(6)an application for the order directing the service provider to remove from his computer system the work which has been made in a manner infringing copyright, or to terminate the infringement of copyright by any other means.

Upon receipt of the request under paragraph 1, the court shall hold an examination. If the court finds that the request contains the details under paragraph 3 completely and that there is a necessary cause for which the court should give an order granting such request, the court shall give an order directing the service provider to, within a period of time designated by the court, terminate the act claimed to constitute the infringement of copyright or remove from his computer system the work claimed to have been made in a manner infringing copyright. The order of the court can be enforced upon the service provider immediately and this order shall be notified to the service provider without delay. In such event, the service provider shall take action against the infringer of copyright within the period of time designated by the court in order to have the act claimed to constitute the infringement of copyright terminated or to have the work claimed to have been made in a manner infringing copyright removed from the computer system.

In the event that the service provider is not the person controlling, initiating, or ordering the commission of the infringement of copyright in his computer system and he has already complied with the order of the court under paragraph 4, he is not required to be liable for the act claimed to constitute the infringement of copyright, which took place before the court gave the order and takes place after the order of the court expires.

The service provider is not required to be liable for any damage arising from his compliance with the order of the court under paragraph 4.”

Section5.The following text shall be inserted in the Copyright Act, 2537 BE as section 51/1:

“Section51/1.A performer has the right to present himself as the performer of his own performance and has the right to prevent the transferee of a performers’ right or any other person from misrepresenting, reducing, adapting, or doing any other thing to such performance to the extent that causes injury to the good name or credit of the performer, and once the performer has died, his heir has the right to institute an action for enforcing such right [at any time] throughout the term of protection of the performers’ right, save where a different agreement has been adopted in writing.”

Section6.The text of section 53 of the Copyright Act, 2537 BE shall be repealed and replaced by the following text:

“Section53.Sections 32, 32/2, 32/3, 33, 34, 36, 42, and 43 shall apply mutatis mutandis to the performers’ rights.”

Section7.The following text shall be inserted in the Copyright Act, 2537 BE as Chapter 2/1: Rights management information and technological protection measures, sections 53/1, 53/2, 53/3, 53/4, and 53/5:

“Chapter 2/1
Rights management information and technological protection measures

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Section53/1.Removal or alteration of rights management information with the knowledge that such an act would encourage, originate, facilitate, or conceal infringement of copyright or performers’ rights shall be deemed to be infringement of rights management information.

Section53/2.Whoever, knowing that a copyrighted work or a copy of such work has undergone removal or alteration of rights management information, conducts any of the following acts upon such work, shall also be deemed to commit infringement of rights management information:

(1)bringing or ordering to be brought into the Kingdom for distribution;

(2)communicating to the public.

Section53/3.The conduct of any of the following acts shall not be deemed to be infringement of rights management information:

(1)Removal or alteration of rights management information by a legally empowered public officer for the execution of law, for the necessity of national defence, for the maintenance of national security, or for other similar objectives;

(2)Removal or alteration of rights management information by an educational institution, hall of archives, library, or public broadcasting entity without a view to seeking profit;

(3)Communication to the public of a copyrighted work or its copy which has undergone removal or alteration of rights management information, by an educational institution, hall of archives, library, or public broadcasting entity without a view to seeking profit.

The forms of the rights management information according to (2) and the copyrighted work or its copy which has undergone removal or alteration of rights management information according to (3) shall be as designated in a ministerial regulation.

Section53/4.Circumvention of a technological protection measure, or the provision of a service for circumvention of a technological protection measure with the knowledge that such an act would encourage or originate infringement of copyright or performers’ rights, shall be deemed to be infringement of the technological protection measure.

Section53/5.The conduct of the act under section 53/4 in any of the following events shall not be deemed to be circumvention of a technological protection measure:

(1)the act is necessary for performing an act which enjoys an exception to infringement of copyright upon a copyrighted work;

(2)for analysis of a necessary element of a computer program used in combination with another computer program;

(3)for the purpose of researching, analysing, and detecting an error of a cryptographic technology, provided that the person conducting it has lawfully acquired the copyrighted work or a copy of such work and has already made an effort in good faith to seek permission from the copyright owner;

(4)for a specific purpose of testing, inspecting, or correcting a security system of a computer, computer system, or computer network, provided that permission has been obtained from the owner of the computer, computer system, or computer network, as the case may be;

(5)for termination of the operation of a technological protection measure with respect to the collection or distribution of personally identifiable information which reflects an activity on the internet of a person accessing a copyrighted work, provided that the act must not affect access to the copyrighted work by another person;

(6)the conduct of the act by a legally empowered public officer for the execution of law, for the necessity of national defence, for the maintenance of national security, or for other similar objectives;

(7)the conduct of the act by an educational institution, hall of archives, library, or public broadcasting entity without a view to seeking profit, in order to access a copyrighted work which cannot be otherwise accessed.”

Section8.The title of Chapter 6 Cases relating to copyright and performers’ rights of the Copyright Act, 2537 BE shall be repealed and replaced by the following text:

“Chapter 6
Cases relating to copyright, performers’ rights,
rights management information, and technological protection measures”.

Section9.The following text shall be inserted in the Copyright Act, 2537 BE as paragraph 2 of section 64:

“In the event where clear evidence shows that infringement of copyright or performers’ rights has been committed with a desire or intention to enable a wide-scale access by the public to a work subject to copyright or performers’ rights, the court shall have the power to order the infringer to pay additional damages not exceeding twice the amount of the damages under paragraph 1.”

Section10.The following text shall be inserted in the Copyright Act, 2537 BE as section 65/1:

“Section65/1.Sections 63, 64, and 65 shall apply mutatis mutandis to the institution of cases relating to rights management information and technological protection measures.”

Section11.The following text shall be inserted in the Copyright Act, 2537 BE as section 70/1:

“Section70/1.Whoever commits infringement of rights management information according to section 53/1 or 53/2 or infringement of a technological protection measure according to section 53/4 shall be punished with a fine from ten thousand baht to one hundred thousand baht.

If the offence under paragraph 1 is committed for a commercial purpose, the offender shall be punished with imprisonment from three months to two years, or a fine from fifty thousand baht to four hundred thousand baht, or both the imprisonment and the fine.”

Section12.The text of section 75 of the Copyright Act, 2537 BE shall be repealed and replaced by the following text:

“Section75.The things made or brought into the Kingdom in a manner infringing copyright or performers’ rights and the things used in the commission of an offence under this Act shall all be confiscated. In the event that the court deems it appropriate, the court may order that they be rendered useless or destroyed, in respect of which the expenses shall be borne by the infringer.”

Section13.The text of section 77 of the Copyright Act, 2537 BE shall be repealed and replaced by the following text:

“Section77.The Director General shall have the power to settle the offences under section 69, paragraph 1, section 70, paragraph 1, and section 70/1, paragraph 1.”

Section14.In all cases of infringement of copyright or performers’ rights for which criminal charges have been entered prior to the day of coming into force of this Act and which are not yet final, section 75 of the Copyright Act, 2537 BE as amended by this Act shall apply to the things made or brought into the Kingdom in a manner infringing copyright or performers’ rights.

Section15.The Minister of Commerce shall be in charge of the execution of this Act.

Countersignature
General Prayut Chan-o-cha
Prime Minister

Note: The grounds for promulgation of this Act are as follows: At present, rights management information and technological protection measures are used in protecting works subject to copyright or performers’ rights, making it appropriate to establish protection for rights management information and technological protection measures, to establish additional exceptions to infringement of copyright or performers’ rights, to empower courts to order infringers of copyright or performers’ rights to pay additional damages for works subject to copyright or performers’ rights which have been made accessible by the public on a wide scale, and to empower courts to order confiscation or destruction of things used in the commission of offences and things made or brought in to the Kingdom in a manner infringing copyright or performers’ rights. It is therefore necessary to enact this Act.

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1. Literally, “technological measure”. (Wikisource contributor note)
2. The wording of the Thai text is extremely difficult for a human being, even a native Thai, to understand. It literally translates as follows:

   “The conduct [of any act] to a work which has copyright, which has been made or acquired lawfully[,] in a computer system[,] which has a characteristic of reproduction[,] which is needed to have for the bringing of a copy to use, in order that a device which is used in the computer system or the process of sending a copyrighted work through the computer system can operate normally.”

   Issues about this problematic wording were also raised amongst the National Legislative Assembly during the first reading of the bill of this Act on 16 October 2014 (Samnak-ngan Lekhathikan Wutthisapha, 2014a, pp. 133–134). However, the bill was passed at the third reading on 27 November 2014 without any amendment (Samnak-ngan Lekhathikan Wutthisapha, 2014b, pp. 123–124). (Wikisource contributor note)

   References

   • Samnak-ngan Lekhathikan Wutthisapha (2014a). Rai-ngan kanprachum sapha nitibanyat haeng chat khrang thi sip-hok wan phruehatsabodi thi sip-hok tulakhom song phan ha roi hasip chet [Transcript of the 16th Meeting of the National Legislative Assembly, Thursday, 16 October 2557] (in Thai). Bangkok: Sapha Nitibanyat Haeng Chat. 
   • Samnak-ngan Lekhathikan Wutthisapha (2014b). Rai-ngan kanprachum sapha nitibanyat haeng chat khrang thi yisip chet wan phruehatsabodi thi yisip chet phruetsachikayon song phan ha roi hasip chet [Transcript of the 17th Meeting of the National Legislative Assembly, Thursday, 27 November 2557] (in Thai). Bangkok: Sapha Nitibanyat Haeng Chat.