The disadvantage of different regulation of the life of the copyright is felt not only in the countries with the longer term of copyright protection, but also in the countries with a shorter term of protection. A person, who does what is legal in his country by posing some materials on the Internet, violates the law of another country whose sanction may include such measures as fines and imprisonment for copyright offences. There is a famous case involving International Music Score Library Project (IMSLP) which was an online library of public domain musical scores based in Canada where the term of copyright protection was fifty years after the death of the author. Universal Edition, an Austrian Music Publisher challenged the right of IMSLP to offer access to some works still under copyright protection in Europe.30 In order to avoid any legal dispute, the library was removed from the Internet even though it was lawful in Canada, and according to a legal opinion, “if Universal Edition were to file a lawsuit in Austria, it is entirely possible that the Austrian court would dismiss it on the grounds that it cannot assert jurisdiction over the Canadian-based site.”31 As long as the Canadian student who started the project does not go to Austria or is not known there to be a copyright violator, there is little problem to worry about a possible prosecution. However, there is a higher risk for a big company or publisher who may be sufficiently known in the second country or has some financial interest there. This company or the publisher may be forced to comply with the law of the second country, and disregard the public policy to provide a quicker free access to the artistic and literary work in its own country.
Further, the interpretation of international accepted rules on copyright and its protection can and does significantly differ from country to country. In Thailand, copying is generally allowed if it is done for research or education, or even for personal use without pursuing commercial goals.32 Such freedom would not be allowed in the developed countries even though research and education can, to a limited degree, justify unauthorized copying of protected materials. That creates an enormous difficulty to enforce any single policy of copyright protection on the Internet.
Copyright law in general and criminal copyright law in particular are rather vulnerable legal constructions since the reliable proof of copyright ownership is not always available. One difficult issue relates to the beginning of Internet copyrights, and its proof in cases of dispute. The establishment of the date of creation is important not only for proving who is the author, but in some cases (cinematographic and photographic works) also for the validity of the copyright itself. According to IP law, those copyrights begin from the moment of creation of the materials that is even before those materials are displayed on the Internet. There can be a problem of identifying the exact date of creation of the materials at issue. When one accesses, for example, any literary work posted on the Internet, there is often no way and even time for a modern user to check the age of the literary piece. Materials posted on the Internet can be copied by millions of their users.
If the owner of the copyright tries to sue those users, he must prove that he is the creator of the material. That presents certain difficulties. For example, two users of the Internet argue who created the material. The only way is to check the date when the users were found in the possession of the material. The author of the disputed copyright may present the computer records showing the date when the author has saved his digital art or graphic to his hard disk. Property icon attached to the file tells the date of its creation indeed. But how reliable is this record? A sophisticated user can change the date. Further, the author could slightly modify the file later after the copyright violation took place. By making such modifications, the computer record concerning the date of creation would help little to provide reliable evidence. It is true that a careful author can assert one’s rights on the Internet materials through saving the product to a disk and then mailing it to himself via certified mail. He can keep the envelope sealed in a safe place, which he then can present as an evidence of the date of creation when he asserts his copyright. In some countries, the author can register his copyright with the copyright registration office. However, there are many inconveniences in doing all these things. The authors are often too busy to go to the post office or to contact the copyright registration office each time they have created something new. It does not solve the problem for those authors who did not follow those precautions.
Above all, the nature of the Internet is based on copying. It is driven by the culture of free unlimited access to the information disregarding the fact whether the material is protected by the copyright or not. This anti-copyright nature of the Internet is seen, for example, in the open source software movement. Open source refers to the development of software which is publicly available in source code form. Source code is written in a recognized programming language which other programmers can use. Open source software is publicly available on the Internet. Its quality is certified by so called the Open Source Initiative (OSI), a non-profit corporation.33 The software is distributed free of licensing restrictions. This encourages users to run, modify, copy and distribute the software freely, so long as certain conditions are met, including that the program’s source code remains publicly available and the holder of the source code license does not collect royalties. It is argued that open source helps to develop software better and faster than the one protected by the copyright, and therefore everyone and the community benefit more than from the regime imposed by copyright laws. Thus, the Internet challenges the fact of the existence of copyright law itself.
In this context, increasing criminalization of copyright violations seems to appear a poor remedy. New changes in copyright law of Thailand hardly address the underlying causes of the copyright infringements on the Internet. Indeed, there is no country in this world which can alone copy with the complicated problems of Internet copyright. One solution would be to have an international agreement which would apply unified copyright standards to the Internet taking into account its specificity and the philosophy of freedom of exchange. That, however, would involve an increased governmental control of the Internet to which many are opposed.34 Another suggested solution is to apply conflict of laws mechanisms. This, however, is considered as ineffective means to enforce copyrights on the Internet.35
ENFORCING COPYRIGHT OF THE INTERNET
Making a copyright infringement to be a criminal offence has far-reaching consequences. If a copyright infringement remains a civil (tort) wrongdoing, the policing and suing remains in the hands of the injured party. If the same offence is classified as a criminal offence, it is the duty of the state to employ its suppressive mechanism involving the police, investigation officers, prosecution, judges, and prisons to suppress copyright infringement activities. It is a common truth that copyright owners face significant difficulties in protecting their exclusive rights on the Internet by their own strength. It is difficult even for big companies. One organization which represents their interests worldwide is International Intellectual Property Alliance. Every year, it publishes its reports on almost every country in the world, including Thailand, complaining about poor enforcement of the rights of intellectual property owners.36 These reports are of great interest, despite being biased, because they try to be as factual as possible. Each year they come to the same conclusion. Thailand has a poor enforcement of its copyright laws in general and on the Internet in particular.37
After reading all these repetitive complaints against Thailand, it is natural to ask the question: whether the problem is not that those people who do not follow the law are bad, but the law criminalizing many Internet users is bad. To be more specific, the question is: to what extent should the Internet copyrights be subject to criminal laws? The fundamental principle of intellectual property law is that a copyright protection covers literary, scientific, and artistic works, whatever the form of expression, provided that such works are fixed in a tangible or material form. This is called the condition of tangibility. Therefore, as long as the materials on the Internet have got this tangible form, the copyright law claims its jurisdiction. Any written material, any play, movie or song transmitted through the Internet, a photograph, and even HTML coding and a computer graphic are theoretically covered by the copyright law, since they are recorded and kept on a disk or a computer hard drive. Since Thailand has not yet become a party to the Internet treaties, it has more space for maneuver by excluding, even partly, the Internet materials from the full application of copyright law provisions.
The copyright protection according to the general principles of intellectual property law means that the owners of the literary and artistic works have exclusive rights to reproduce, prepare derivative works, distribute, perform and display the work publicly. Exclusive right means that no one else can do it unless authorized by the owner of the right. If applied fully to the Internet, it means that nobody may access a web site and copy its layout, text or graphic until the owner of the layout, text or graphic gives permission to do so. That, however, runs against the whole usage of the Internet, where people access web pages and copy everything they want without asking any permission. According to a non-Internet use of copyrights, such permission is necessary and is often issued in a written form.38 The Internet poses significant problems for this rule.
Apart from determining whether or not the material is copyrighted, there can be enormous inconvenience to obtain copyright license. For example, I found on the Internet a good piece of poetry written recently with the name of the author and the copyright statement that all rights are reserved. I want to copy this poem and post it on my website. An easy way to get the license would be writing to the owner of the web site where I saw the poem making necessary enquiries. However, not everything posted on the other web site can be asserted by their owners as their intellectual property. The owner of web site may not be necessarily the owner of the copyright. Even though, the owner of the web site might have permission to post copyrighted materials, this permission does not mean intellectual ownership of that material. In other words, it does not entitle the owner of the web site to allow other people freely to copy it. Only the owner of copyright can do that. In relation to some songs and films, it is easy to obtain permission because there is a developed system of organs which are authorized to grant copyright licenses. But it is not as easy in relation to many literary, scientific, and artistic works which are not distributed on a big commercial scale.
Thai legislators should be creative in finding a Thai solution to the conflict between the reality of the Internet and the old principle of requiring permission from the copyright owner rather than copying laws (a good luck for Thai lawmakers that legislation can be copied), written by different people for different people and in different cultural context. The American copyright legislators cannot accept the reality: the underlying principle and practice of the Internet is that the user accesses the web pages often solely for copying the Internet materials. At the same time, the owner of the copyright materials, who consents to posting them on the Internet, knows it. If only the legislators were brave and would acknowledge that by the very fact of posting his material on the Internet, creates the presumption that the owner has abandoned his exclusive copyright (without abandoning moral rights), then many difficulties and uncertainties of the applicability of the copyright law to the Internet would be solved. It is true, that such decision would not solve all problems. One problem is that the owner may not have consented that his or her materials are freely copied on the Internet. Another problem would be that by making the owners abandon their exclusive rights (but not moral rights) by the mere fact of voluntary publicizing the material on the Internet can discourage them for making the material available on line for a limited use. Thus, the legislators must find a way to protect the legitimate interests of the copyright owners who did not consent to the circulation of their works on the Internet or would like to reserve certain exclusive rights. One way to achieve it is to create a fund which would grant some limited compensation to copyright owners for letting their materials freely circulate on the Internet. The amount of compensation, the type of materials, as well as the contributions to the fund have to be carefully thought trough.