Anti-Camcording in Movie Theaters
By Chadaporn Ninlakarn
In the business world, it is indisputable that the film industry is one of the most significant business sectors affecting the economic growth of each country. In many countries, including Thailand, the primary source of revenue in the film industry is derived from exhibition to audiences in theaters.1 Filmmaking, often referred to as film production in an academic context, is the process of making a film; starting by forming an initial story idea or commission, through scriptwriting, shooting, editing, and directing to distributing the finished film to audiences.2 Creativity, effort, and financial investment must occur in almost all stages of filmmaking. As such, in many countries, film is deemed intellectual property and, as a copyrighted work, is eligible for protection by copyright law. Copyright law may vary from country to country. However, its purpose globally is pursuing the goal of promoting use and development of science and useful arts, while protecting the creator in exchange for his effort and creativity so that many new and useful works will be continuously produced and developed.3
Disappointingly, even though film is protected by copyright law, the film industry has suffered dramatically from infringement, commonly known as "movie piracy," for many years. Movie piracy can be committed in many forms. However, researches and analysis on copyright infringement of films done by the Motion Picture Association of America (MPAA) shows that more than ninety percent of newly released movies appearing illegally on the Internet and on the streets around the world originate from illegal copies made in movie theaters.4 It only takes one camcorder or any other recording devices to illegally copy a movie during exhibition, usually very early in its theatrical release or even prior to the film's release, in a movie theatre.5 Hence, illegal camcording in movie theaters is considered the single largest source of fake VCDs/DVDs sold on the street and of unauthorized copies distributed on the Internet. For this- reason, many countries have addressed movie piracy by primarily focusing on the root of the problem-illegal camcording in movie theaters. They believe that illegal camcording in movie theaters is a serious offence and in order to end movie copyright infringement that an effective measure against the camcording piracy in movie theaters must first be taken.
Concerning movie copyright infringement in Thailand, the survey carried out by the MPAA indicated that Thailand was the top country for camcording piracy in movie theaters in the Asia region in 2010.6 Thailand remained on the United States' Priority Watch List in 2011.7 Then, in 2012, the United States of America announced that Thailand was once again on its Priority Watch List because several key pieces of legislation regarding strong enforcement against infringement of intellectual property remained pending, including legislation concerning illegal camcording in movie theaters.8 Although Thailand has a copyright law in operation granting protection to copyrighted works, the problem of copyright infringement, particularly movie piracy, has been drastically and continuously increasing. The pirated movies are distributed to the markets right after the movie has premiered and shown for only one or two days. The rising number of illegal movie camcording leads to the question of effectiveness of enforcement under the existing Copyright Act B.E. 2537 and whether it is sufficient to deter camcording piracy. And whether, if ineffective, we should implement new legislation specifically concerning illegal in movie theaters or merely amend the existing Copyright Act.
This paper will answer those questions. However, it will first elaborate on the problem of illegal camcording in movie theaters in Thailand and analyze which law can be best applied to this offence. Next, it will explore the legal measures taken by foreign countries against illegal camcording in movie theaters. Then, it will focus on the development of anti-camcording law in Thailand through an in-depth analysis of the specific draft law and draft amendment to Copyright Act B.E.2537 regarding illegal camcording in movie theaters in order to determine if it should be implemented into our copyright law. Finally, the conclusion and recommendations for alternative solutions for deterring camcording piracy will be made.
I. Problem of Illegal Camcording in Movie Theaters in Thailand
Camcording in a movie theater is considered stealing someone else's property and hard work.9 When someone enters a theater with any type of recording device and intentionally records or photographs any portion of the movie or audio track that person is engaging in illegal movie theft.10 Generally, "sneak preview" screenings and opening nights are popular targets for camcording piracy. Illegal camcording in movie theaters must be fully equipped with many factors, such as advanced technology, professional network lines, and, of course, a headman who is behind the whole process and provides financial support for these illegal activities11 instead of committing the offence himself, the headman usually uses or hires other people, especially young people.12 When the movie premieres those young people are sent to the positions within the theater network. They work as a team, separating-duties and each recording only 5-10 minute portions of a film. Subsequently, combining all the portions together and then selling these recordings to illegal source labs where they are illegally duplicated, packaged, prepared for sale on the black market, and then distributed to bootleg dealers across the country and overseas13. As technology developed, the quality of pirated films available is now equal to that of official copies. Modern equipment also makes it hard to detect illegal camcording. Furthermore, organized crime is getting more involved in illegal camcording in movie theaters because it has huge profit margins with less risk of arrest and relatively low penalties when compared with many more-capital-intensive and higher-risk illegal activities that they already engage in, such as drug and human trafficking14. Illegal movie camcording not only has a destructive impact on the film production sector, but also causes economic damage throughout the entire community by threatening all types of jobs and other related businesses, such as movie theaters and authorized VCDs or DVDs distributors.
II. Legal Measures against Illegal Camcording in Movie Theaters in Foreign Countries
In most countries around the world, the film is granted a protection by copyright. Generally, anyone who infringes the exclusive rights of the copyright owner, which in this situation is the unauthorized camcording in movie theaters, shall be liable under the copyright law. However, even with this protection, the rapid growth of illegal camcrording still interferes with the film industry. The amount of illegal camcording in movie theaters globally is increasing and threatens the film industry around the world. Every country suffers from the impact of illegal camcording, which is considered a primary cause of movie piracy. This implies that copyright law alone may be insufficient to battle this problem and that it may have some gaps that prevent enforcing the law against such piracy. Therefore, the governments of suffering countries have paid a lot of attention to this matter and made great efforts to provide a new legal solution to quickly tackle this problem.
Among the measures taken against illegal camcording in movie theaters, Anti-Camcording legislation seems to be the most effective in stopping the rapid increase of camcording piracy. The United States of America, Canada, the Czech Republic, Germany, Hong Kong, Italy, Japan, and the Philippines now have Anti-Camcording law and some others are actively considering legislation15. However, only the laws from the United States of America, Canada, Japan, and the Philippines will be briefly addressed below.
Although Chapter 17 Section 501 of the United States Code permits American copyright owners to pursue civil action against copyright infringers, the US Federal government created additional protections against camcording by enacting “The Artists’ Rights and Theft Prevention Act of 2005”, which specifically bans this practice. Section 102 of the Act amended Title 18 Crime and Criminal Procedure, United States Code by adding a new offense after Section 2319A. This new Section, 2319B, criminalizes the use or attempted use of an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under Title 17, United States Code, or from the performance of such work at a motion picture exhibition facility. The most significant and powerful tool of the Act is that it grants the theater owner legal immunity for questioning suspected infringers and for detaining them while police are summoned. There is no exception for a person recording an excerpt for purposes that would constitute legal “fair use”.16
Considering the criminal provision in the Copyright Act applicable to camcording, it appears that Section 42(1)(a) of the Act prohibits knowingly making unauthorized copies of copyrighted works available for sale or rental. However, it is very difficult to successfully apply this provision because it requires that the Crown prove beyond a reasonable doubt that the camcording was knowingly done for commercial purposes.17 Because the criminal liability established in the Copyright Act cannot effectively combat pirating, the government of Canada decided to create a new offence under the Criminal Code through new legislation called “Bill C-59.”18 It addresses the illegal recording of movies in theatres, especially at initial releases, by creating two offences in the Criminal Code: one for personal use recording and one for commercial use recording.19 Additionally, because the bill creates an offence in the Code, so any police force in Canada has jurisdiction to enforce it, not only the Royal Canadian Mounted Police.
The Philippines has become a regional hotspot for illegal camcording in movie theaters and it recognized the scope of harm caused by this piracy. The government made an effort to establish legislation specifically banning camcording in theaters. Consequently, in 2009, the Philippines became the first country in Southeast Asia that successfully established an anti-camcording law. Named “The Republic Act 10088,” or better known as the “Anti-Camcording Act of 2009”20 the Act holds illegal camcorders to strict liability and, like the United States of America and Canada, camcording activities declared for private or domestic purposes are punishable, as are aiding and abetting, or conspiring in such acts.21 In cases where the camcording is intended for sale, rental or other commercial distribution, the penalty is more severe than usual.22 If the illegal camcording is committed by a foreigner, said person shall be deported immediately after payment of the fine and after serving his or her sentence.23 Also, if the offender is a government official or employee, the penalty shall include permanent disqualification from public office and the forfeiture of his right to vote in any public election for the period of five years.24 Additionally, it allows authorized persons, even without warrant and payment of admission fee or any charge, to enter and search any exhibition facility, seize any audiovisual recording device, and detain any person should they have reasonable ground to believe that a violation under this Act was or is being committed.25 Furthermore, the Act also provides a duty for the owner of the exhibition facilities to conspicuously display notices and signage at their premises, including, but not limited to, ticket selling areas and theater entrances, to warn their patrons of the consequences of illegal camcording activities.26
* This article is summarized and rearranged from the thesis "Anti-Camcording in the Movie Theater", the requirement for the degree of Master of Laws in Business Laws (English Program), Faculty of Law, Thammasat University, 2013.
1 Kenan Inst. Asia, "Economic Contributions of Thailand's Creative Industries Final Report' 70, http://www.kiasia.org/userfiles/Kenan_FPRI_Creative%20Industry%20Constribution% 20Final%20R.Report%20TH.pdf (last updated Dec, 2009).
2 See Josef Steiff, The Complete Idiot's Guide to Independent Filmmaking 26-28 (2005).
3 Meto Aboy,"What is .the Purpose of Copyright Law?", http://www.mateoaboy.corn/f6/blog_files/128ce98299902760flc540b8dcf9eec5-4.html (last visited Apr, 13,2012).
4 Motion Picture Ass'n of America, “Type of content Theft” http://www.mpaa.org/contentprotection/types-of-content-theft (last visited Sept. 13, 2012).
6 Pattaya Mail, "Thailand, cited as the top country of camcording in cinema", http://www.pattayamail.com/news/thailand-cited-as-the-top-country-of-cam-cording-in-cinema-2364 (last updated Mar. 29, 2011).
7 PetchanetPratruangkrai, "Thailand still on priority watch list", http://www.nationmultimedia.coni/2011/05/04/business/Thailand-still-on-priority-watch-list-30154553.html (last updated May 4, 2011).
8 Ronald Kirk, "2012 301 Special Report", http://www.ustr.gov/sites/default/files/2012%20Special%20301%20Report.pdf (last updated Apr., 2012).
9 Nat'l Ass'n of Theater Owners, "Theater Employee Movie Theft Fact Sheet' 1, http://www.natoonline.org/pdfs/Theater%20Employee%20Movie%20Theft%20Fact%20Sheet.pdf (last visited June 30, 2012).
11 คมชัดลึกออนไลน์, "แฉ: แก๊สซูมแผ่นผี จ้างเด็กไฮเทค...ทำเจ๊ง 7 พันล้าน" (Komchadluek Online, "Reveal: Illegal camcording group hires hi-tech kids... affecting economic lose about 7 billion baths" ( last updated Jan. 17,2013).
14 Gregg Kilday, "Crime syndicates wore involved in Film piracy: report". http://www.reuters.com/
article/2009/03/03/us-piracy-idUSTRE5221CZ20090303 (last updated Mar. 3, 2009).
15 Nat'l Ass'n of Theater Owners, "Anti-Camcording Legislation (ACL)Chart", http://www.natoonline.org/pdfs/PDF%20Movie%20Theft/International%20Camcord%20Statutes.pdf (last updated Aug. 20, 2008).
16 See Artists' Rights and Theft Prevention Act of 2005, sec. 102.
17 Andrei Edwards, "Camcording movie piracy and the Canadian Dilemma",8 Information Technology 1, 1-2, 2007.
18 Dominique Valiquet, "Legislative Summary LS5S9E: Bill C-59: An Act to amend the Criminal Code (unauthorized recording of a movie)", http://www.parl.gc.ca/Content/LOP/LegislativeSummaries/39/l/c59-e.pdf (last updated July 5, 2007).
19 Bill C-59, sec. 432.
20 Patrick Frater, "Police begin enforce camcording law", http://www.filmbiz.asia/news/police-begin-enforcing-camcording-law (last updated Aug. 15, 2012); see also Jinny Jacaria, "Anti-camcording Law of 2010 Strictly, Implemented by PNP and Supported by Private Sector Joint Efforts Intensify to Intensify Campaign Against Film Piracy", http://www.scribd.com/doc/35591997/Anti-Piracy-Law (last updated Aug. 9, 2010).
21 Msec. 3, 6.
22 Id. sec. 4 para. 2.
23 Id. sec. 4 para. 3.
24 Id. sec. 4 para. 4.
25 Msec. 8.
26 Id. sec. 7.