Thailand Law Journal 2014 Spring Issue 1 Volume 17

• Japan

In order to fight illegal camcording in movie theaters, Japan enacted specific laws, separate from its copyright law, Copyright Act No.48 of May 6, 1970, which is known as “Law for the Prevention of Stealthy Recording of films”.²⁷ The primary tool under this law is in Article 4, which prohibits the application of the "private use" provision under Article 30, paragraph (1) of Copyright Act for illegal camcording conduct.²⁸ However, this prohibition shall not apply to illegal camcording made after a lapse of eight months from the day when the first showing of the film was made in cinemas within Japanese territory that charged fees to the audience.²⁹ It must be noted that because illegal camcording conduct is not specifically defined as an offence under this law, whoever conducts illegal camcording shall, therefore, be punished by imprisonment for a term not exceeding ten years or a fine not exceeding ten million Yen, or both under the copyright law of Japan. Furthermore, the Act imposes duties upon sponsors showing films in cinemas and other enterprisers connected with the film industry to make an effort to prevent the stealthy recording of films.³⁰ However, the law does not specify in detail what the duties are.

From the above, it is clear those countries are greatly concerned with the problem of illegal camcording in movie theaters. They, therefore, have provided strong measures to deal with such infringement, as supported by enacting specific laws regarding anti-camcording in movie theaters as described.

III. Legal Measures against Illegal Camcording in Movie Theaters in Thailand

This section, regarding legal measures against illegal camcording in movie theaters in Thailand, is divided into three parts: starting with an analysis on the Copyright Act, then problems of law enforcement against illegal camcording in movie theaters, and finally development of Anti-Camcording law in Thailand.

a) Analysis on the Copyright Act

After a thorough study of the nature of illegal camcording in movie theaters, the law that best applies is Copyright Act B.E. 2537 (hereinafter referred to as the Copyright Act). The meaning of film is a recording on any medium, from which a moving image may be produced it. This is consistent with the specific definition of “cinematographic work,” which is eligible to be a copyrighted work under Section 6. Camcording is considered a manner of reproduction under Section 4 of the Copyright Act. Whoever commits illegal camcording in movie theaters without permission from the copyright owner of the movie commits a copyright infringement under Section 28 and shall be fined under Section 69 of the Copyright Act. If it is proved that the illegal camcording was committed for commercial purpose, the punishment will be greater than for personal purpose. As provided therein, the rate of fine will be higher and the length of imprisonment longer. In cases where the fine is paid according to the IP&IT Court's judgment, one half of said fine will be paid to the copyright owner in accordance with Section 76 of the Copyright Act. However, this Section shall not prejudice the copyright owner's right to bring a civil action for damages.

The above analysis shows that current provisions under the Copyright Act are sufficient to apply to illegal camcording in movie theaters. However, regarding the effectiveness of legal enforcement in practice, it is disappointing to say that even though the law has already provided legal measures and both criminal and civil sanctions against the infringer, the number of illegal camcording in movie theaters cases is still increasing and continues to threaten our movie industry. As a result, it may be construed that the Copyright Act still has some loopholes that obstruct the enforcement of the law against this piracy.

b) Problem of Law Enforcement against illegal Camcording in Movie Theaters

According to information from the Department of Intellectual Property, the loopholes in the Copyright Act which block the effectiveness of 1 enforcement against the illegal camcording in movie theaters can be construed as follows:³¹

• Characteristic of Copyright Infringement Offences

As explicitly stated in Section 66 of the Copyright Act, copyright infringement under this Act is a compoundable offence. In Thailand, classification as a compoundable offence directly affects the right to proceed with the case and the judicial power of the competent authorities, such as inquiry officials and courts.³² Without complaints from injured copyright owners or their representatives, the inquiry officials have no authority to initiate the investigation, enter property of the offender, seize or confiscate any material in relation to the offence, or arrest the offender.³³ As a result, the evidence necessary for proving the infringer's guilt, including the infringing movie file, pictures taken of the screen, memory cards, or any equipment used for camcording, may be destroyed before a complaint is filed. This directly results in the difficulties of charging offenders.

• Exception of Copyright Infringement

Even though there is reasonable evidence proving that illegal camcording in movie theaters was committed, most infringers often protect themselves by using the exception to copyright infringement by claiming that they recorded just a short part of the movie or that it was intended for private use and not for a commercial purpose. With the defense stated, the authorities are not able to take any actions against them and have to let them free.

• Difficulty in Pursuing the Real Criminals to Justice

As discussed earlier, the headman, who has both financial and supervising power over the illegal camcording process, usually hires children to commit the illegal camcording instead of doing it himself. Therefore, it is difficult to bring the real criminals to justice. Also, as many of the arrested offenders are children, copyright infringement cases in Thailand often result in a compromise or settlement between the parties, because most copyright owners pity them and eventually decide to drop a charge. Or, in some cases, the copyright owners decide to bring a charge against them where the penalty for those children is very light. As a result, of being free from the punishment, they commit the offence over and over again. This is the reason why the circle of camcording piracy never fades away from our society.

• Weak Penalties of Copyright Infringement Offence

Beyond the loopholes above, some people believe that the criminal penalties under the Copyright Act are too lax when compared with the high returns the illegal camcording network has earned. This encourages infringers to continuously violate the copyright without any fear of punishment.

C) Development of Anti-Camcording Law in Thailand

In response to criticism that the legal mechanism provided in the Copyright Act may not effectively combat the problem of illegal camcording in movie theaters and that there are some gaps that obstruct enforcement of the law in practice, the Thai government has tried to address the problem. The first attempt by the government to deter the illegal camcording in movie theaters appeared in 2010 when the Department of Intellectual Property, Ministry of Commerce prepared the “Draft Law regarding the Offence of Illegal Camcording in Movie Theaters B.E....” (hereinafter referred as the “Draft Anti-Camcording Act”)³⁴ and the “Draft of Copyright Act (No....) B.E....” (hereinafter referred as the “Draft Amendment to the Copyright Act”) in 2011.³⁵

The Draft Anti-Camcording Act

The Draft Anti-Camcording Act was presented to the Cabinet, its principle was approved on September 14th, 2010 and then sent to the Council State for further consideration.³⁶ The significant measures proposed therein are as follows

• It completely prohibits any person from using an exception to copyright infringement for an illegal camcording in movie theaters case.³⁷
• It imposes a criminal penalty for any person who commits an illegal camcording in movie theaters offence.³⁸
• It imposes a criminal penalty for illelgal camcording in movie theaters that is committed by two or more persons.³⁹
• It provides a severe criminal penalty for anyone who forces, threatens, induces, encourages, consents, or uses a person who is under the age of 18 years old to commit an offence.⁴⁰
• It imposes a legal duty on the movie theater operator to announce that illegal camcording in movie theaters is an offence and state the penalty for non-compliance.⁴¹
• It provides officials with the power to enter a movie, theater or to seize or confiscate documents or materials relating to the offence for the benefit of pending litigation if there is a reasonable suspicion that an offence was committed.⁴²
• After comparatively studying the characteristic of the offence according to the Copyright Act and the Draft Anti-Camcording Act, it appears that while the Copyright Act explicitly states that copyright infringement is a compoundable offence, it is not in the Draft Anti-Camcording Act.⁴³ This is because, as previously discussed, the Department of Intellectual Property has concluded that classification as a compoundable offence leads to delay in enforcement. Therefore, illegal camcording in movie theaters under the Draft Anti-Camcording Act was intentionally classified as a non-compoundable offense.

Nevertheless, the draft has never been implemented. At the end of 2011, the Department of Intellectual Property proposed a new alternative legal measure, “Draft of Copyright Act (No....) B.E....” (hereinafter referred as the “Draft Amendment to the Copyright Act”), to the Cabinet to fix the loopholes obstructing enforcement of laws against illegal camcording in movie theaters.