Such a solution, however imperfect, is still better than to criminalize millions of the Internet users. Such criminalization carries not only the moral cost, it brings an enormous economic burden on the public funds. The law has to address the issue of the increased burden of policing and enforcing copyrights as well the social costs of litigation based on the claims of copyright violation on the Internet.39 This high cost of policing and enforcement of copyright is the reality in the Western countries, and Thailand will do better by channeling its resources to combat more socially dangerous types of offences. The current Thai law may potentially criminalize the majority of the Internet users. For example, one provision criminalizes reproduction of a copyrighted work without the owner’s consent.40 The Internet provides plenty of materials including texts, music, video, software, web graphics, photographs and etc. Downloading them is considered by the Internet treaties as an act of reproduction. The law should protect people, who while downloading them, believe that the materials belong to public domain and they can do whatever they want with the copied files. Most of the Internet users would not read any copyright conditions when downloading those files.
Practically, it is hardly possible to sue the person who simply downloaded a song, even though such downloading constitutes a willful violation of someone’s copyright. It is much easier to do with an infringer who makes the song available for the other Internet users either by copying it on his own web site or by means of different file sharing networks. The problem, however, will appear in cases of an infringer who believes that the song is in public domain. He could upload it without any knowledge that the song is protected by copyright. If the owner of the copyright has a single remedy to demand from such person the removal of the song from being available to the other users, there would be little effectiveness for protecting copyrights.
There must be something more effective to deter willful offenders who can always claim that they were ignorant of existing copyrights. Giving the copyright owner compensation in every case of infringement would be unjust if non-willful infringement is treated as willful. Making a clear distinction between them creates an enormous difficulty in proving presence of the intent particularly when taking into account the nature of the Internet communications. Thai law has to develop the working model which would exclude an uneven and arbitrary application of penalties. Following the Western practice of selective punishment of individual copyright infringers on the Internet, while letting others to keep on copying, will do little justice.
The doctrine of "fair use" exempts certain unauthorized uses of copyrighted material from infringement liability including criminal liability. The doctrine is accepted internationally. Thai law contains this concept in Section 32 of Copyright Act.41 It reflects the fundamental principle of copyright law which aims at striking a balance between the interests of the copyright owner on the one hand and the interests of the society to have an easy access to information on the other. In relation to the Internet, it means that copying is normally allowed if it is done for educational purposes, when quoting from copyrighted sources in reporting, reviews, and scholarly research, and some other uses depending on the law of each country and its interpretation. Whether the use is fair or not, depends much on the ability of the user to obtain a license from the copyright owner, and also on the scope of the use.
The commercial use of the protected work is normally outside the scope of fair use. However, if the commercial use is "transformative" then there is no copyright violation. Transformative use imparts some new expressive meaning by using the copyrighted material. Copyright law does not bar other authors to make a creative use of existing works. The fair use doctrine "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster."42
In determining whether unauthorized copying is a fair use, it is important to look at the impact of the use on the interests of the copyright owner. If there is a significant impact on the existing market for the copyrighted material, there is no fair use. If the original work is not readily available, copying may be allowed. Copying may also be allowed if it is done sparingly. In any case, the existing accepted practices of the users will be taken into account when deciding whether there is a fair use or not.
The concept of fair use varies from country to country. American law provides much narrower concept of fair use than Thai law. Section 107 of the US Copyright Act offers a nonexclusive list of fair uses: for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.43 American courts also allowed copying with the purpose of parody. These purposes do not generally involve infringement of copyright. However, in many cases, the uses for such purposes were considered by American courts as copyright infringing. In Los Angeles Times v. Free Republic,44 the court rejected a fair use defense. The defendant was a website operator who allowed subscribers to post stories from various newspapers and then encouraged discussion of the supposed biases of the articles' authors. The court agreed with the defendant that the news reports had factual nature and, in principle, were outside copyright protection.
However, the court found that the use was commercial and that it would impair the plaintiff's ability to license its works. In deciding so, the court applied the requirement of section 107 of the US Copyright Act to consider "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." Although the commercial nature of a use is not determinative, American courts, as it happened in Los Angeles Times v. Free Republic case, deny fairness of the use when it is commercial and profit-seeking in nature.
Moreover, according to American law, a use need not involve direct financial gain or payment to be held "commercial." For example, in famous Napster case,45 the court held that individual users of the file sharing system engaged in a commercial use. There was no payment to the individual users. But "repeated and exploitative unauthorized copies of copyrighted works were made to save the expense of purchasing authorized copies." The most important factor for the US courts is whether the act of copying would damage financial interests of the copyright owner. These financial interests are understood very broadly. In the Napster case, the American Court considered file sharing as a copyright infringement also because it reduced CD sales among the Internet users and made it difficult for the plaintiff to enter the market for the digital downloading of music.
American courts place great emphasis on whether copying is "transformative." The use is transformative when it adds something new altering the original copy with new expression, meaning, or message. Such copying is considered fair since it is consistent with the constitutional purpose of the copyright law: the encouragement of creativity. A simple technical (digital) transforming in an online medium was not sufficient for American courts to constitute fair use. Further, unauthorized use of all, or a significant portion, of a work will not be considered by the US courts as fair use.
The doctrine of fair use will be naturally used in much broader meaning in Thailand as in other developing countries with the different cultural heritage and the concepts of copyright. Everything what is copied for personal non-commercial use on the Internet should be permitted unless the copyright owner offers to an infringer an easy and affordable access to the work. Some commercial uses should also be allowed particularly when no financial damage is caused to copyright holders. The concept of transformative use should be incorporated in Thai law to encourage individuality and creativity.
Thailand follows the general current of increasing criminalization of the infringements of copyrights on the Internet. This is a dangerous tendency which will create even a bigger gap between the law as it is in the books on the one hand and the daily life of ordinary Internet users on the other hand. Instead of increasing criminalization, Thai legislators should diminish the application of criminal law to copyrights violations. Instead of pouring public resources in a fruitless attempt to suppress free flow of information on the Internet, the Thai lawmakers should think of the mechanisms compensating the creators of works, particularly those who did not sell their copyrights to big entertainment companies. The big companies may still afford suing so called “Internet pirates” who violate their rights by copying music or video on the Internet. But most of the copyright owners would have little possibility even to monitor what happens on the Internet, not talking about successful litigation. The nature of copyright is such that criminal law is a very poor remedy to protect independent creators who have neither capacity nor desire to report to the police and to instigate prosecution for copyright infringements against them.
There is a greater danger in the increasing criminalization of copyright law than simply the high probability of its inefficiency. If law can be easily broken, the whole integrity of law suffers. The Internet users must have a clear conscience that what they do is legal. If they act with the doubt that their act might be illegal, the damage to the overall culture of law abiding would be difficult to estimate. The criminal copyright law must be realistic and demand only what it can be effectively policed and enforced. Indeed, it is better to have few criminal laws which are well enforced than many laws which are enforced poorly or not at all.