Thai Criminal Law and Internet Copyrights
By Alexander Shytov1
Internet Treaties and Thailand
Thai Criminal Law of Copyright Infringements
American and Thai Internet Copyright Laws: Comparison
Internet Challenges for Criminal Copyright Law
Enforcing Copyright on the Internet
In its seminal article “Criminalising Copyright”, Isabella Alexander2 urges caution in resorting to criminal law by trying to protect the interests of copyright owners. The author gave an illuminating analysis of the way how various economic interests can affect criminal law of the country. In relation to the attempts of using criminal law in Thailand to protect the interests of copyright owners, the issue is even more complicated since the powerful lobby of a stricter policy to protect copyrights is a foreign power: the United States and her allies.3 The U.S. policy is dictated by the interests of big entertainment companies which make every effort to ensure that the copyrights are observed by
everyone and everywhere including the Internet. The users of the Internet and its culture of free sharing are, perhaps, the most serious challenge to uniform copyright protection. In its origin, the nature of the Internet favours free exchange of information much more than a strict copyright control. Copyright, as it has been expressed in the writings of Lawrence Lessig,4 one of the leading proponents of a limited application of copyright laws to the Internet, has become the means of controlling the content of the Internet. It can be not only used to protect the creativity, it can also be used to stifle further creativity. The final answer to the question how far to go to enforce copyrights on the Internet will be different from country to country. Many countries use criminal law in some cases to protect the interests of copyright owners. Thailand is not an exception. This paper deals with the following question: how far Thailand should resort to criminal law remedies?
Thailand become a contracting party to Berne Convention in 1931, and also adopted in 1995 its revised version made in Paris in 1971.5 Thus, Thailand undertook an international obligation to enforce the main principles of copyright law as reflected in this seminal international agreement. According to the Berne Convention, Thailand must grant copyright protection for all “literary and artistic works.” This term encompasses diverse forms of creativity, such as writings, both fiction and non-fiction, musical works; audiovisual works; works of fine art, including drawings and paintings; and photographs. Related rights protect the contributions of others who add value in the presentation of literary and artistic works to the public: performing artists, such as actors, dancers, singers and musicians; the producers of phonograms; and broadcasting organizations. Copyrights include rights of reproduction and of certain acts of communication to the public, such as distribution, public performance and broadcasting.
Even though the Berne Convention brings some uniformity to the copyright laws across the world, it leaves a significant freedom for the countries to define the scope of the works which fall outside copyright protection, for example because of the subject matter of the work, its author, or the expiration of its copyright term. Thailand as any other party to the Convention can give a different interpretation of the particular right by applying an exception or limitation to copyright protection.6 The Berne Convention leaves freedom to the countries to use or not to use criminal law to protect the interests of copyright owners.
The problem, however, is not only that different countries can regulate copyrights differently to a certain extent. Many countries have provisions in criminal law against serious violations of copyright. The development of the Internet has also raised jurisdictional questions about how criminal law related to copyrights should apply in the new environment. The main issue is whether the Internet signals the end of the multiplicity of criminal laws related to copyright and the beginning of its unification, or countries like Thailand will be able to preserve some of its independence in forming the content of copyright provisions applied to the Internet.
INTERNET TREATIES AND THAILAND
The importance of adjusting copyright law to the age of the Internet has been reflected in two treaties which were adopted in 1996 by more than 100 countries at the WIPO (World Intellectual Property Organization): the WIPO Copyright Treaty (WCT)7 and the WIPO Performances and Phonograms Treaty (WPPT)8 (commonly referred to as the “Internet Treaties”). The both treaties, each having reached their 30th ratification or accession, have entered into force in 2002. Many countries did not sign or ratify those treaties so far, although many countries made their accession afterwards. Thailand at the time of writing this paper is not a party to the treaties.
Both treaties do not explicitly require the use of criminal law to protect the interests of copyright owners. They speak only about “adequate legal protection”. However, their content automatically expends the scope of the existing criminal law to embrace the copyright infringing activities on the Internet. The most important provision, surprisingly, is contained not in the main text of the treaties but in accompanying agreed statement concerning Article 1(4) of the WCT and in the agreed statement concerning Articles 7, 11 and 16 of the WPPT. It is affirmed in those statements that the storage of a protected work in digital form in an electronic medium constitutes a reproduction. In other words, uploading into a computer memory without authorisation can be considered as a violation of the copyright. Reproduction is, perhaps, the most important right of the copyright holder. It is defined as “the production of even a single additional copy of the work.” The importance of those statements is difficult to overestimate. They involve the claim that making any copy in a digital form falls under the scope of the traditional copyright law.
The treaties contain “anti-circumvention” provision such as: “Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”9 Such provisions ensure that technological devices to protect digital works against copyright infringement are not circumvented by other technological devices. Technological systems of protecting against unauthorized copying may include: anti-copy devices, access control, electronic envelopes, proprietary viewer software, encryption, passwords, watermarking, fingerprinting (user authentication), metering and monitoring of usage, and remuneration systems. The music industry, for example, has developed copyproof compact disc (CD) technology that prevents CDs being played on computer disc drives.
Further, the treaties protect the “rights management information.”10 It can contain electronic information which identifies the work, the author of the work, the owner of any right in the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.
It is noteworthy that most support to the Internet treaties comes from the rich countries. The fact that not many developing countries have ratified the treaties so far, reflects a fundamental conflict among different cultural perceptions of the intellectual property. It is likely, however, that most of the countries will yield to the pressures to adopt the provisions of the treaties in their domestic law. Their efficient enforcement will be more doubtful. The composers of the treaties put their trust in technological means to enforce copyrights on the Internet. Their approach to solve the problem is called “digital lock.” After many years of the experience of using those technological means, there is an acknowledgment by their supporters that “the legislative initiatives to support the digital lock approach have failed.”11 The Internet treaties are not welcomed by everybody even in the rich countries. Consumers are not willing to accept the restrictions on their freedom to use digital materials. Electronics manufacturers are increasingly constrained in what they can produce and what they cannot.
What should concern countries like Thailand the most is the issue of providing fair and equitable access to the information on the Internet for all citizens of the world is left without serious attention in those treaties. It appears that the Internet treaties favour the commercial interests of the enterprises who derive their profits from intellectual property.
Thus, the significance of the Internet Treaties is not that it requires introduction of criminal law penalties for the Internet infringements. Not at all. These treaties give full discretion to the countries to provide “adequate legal protection and effective legal remedies”. Their significance lies first of all in the requirement to extend the old mechanisms of copyright protection, including those of criminal law, to apply to the Internet activities. In the next section, we will see that Thai criminal law is very broad, and it can be applied in many instances of the Internet copyright infringement.