5.2) The insertion of the clear limitation as to the amount of reproductions
In this section, this Article recommends that the removal of the two conditions in section 32 paragraph 1 of the CA 1994 must be done together with the insertion of a clear limitation as to the amount of reproduction and a clear prohibition on multiple reproductions into the educational exceptions in the list of permitted acts in section 32 paragraph 2 and the specific exception for libraries in section 34. Specifically, such change and insertion must be made to the exception for research and study in section 32 paragraph 2(1); for teaching in section 32 paragraph 2(6); for educational institutions in section 32 paragraph 2(7)157 ; for use in examination in section 32 paragraph 2(8); and the specific exception for reproduction by libraries in section 34.
This section involves looking at the UK approach to the exceptions applying to education, library, teaching, research and study. For the US approach, I only consider the exception applying to libraries because as already discussed in the previous section, the fair use approach relating to research and study does not offer any solution to the problem in Thailand. This section divides into two parts. The first part recommends that a prohibition on multiple reproductions and clear limitation as to the amount of reproduction should be inserted into the exceptions applying to educational institutions, teaching, research and study. The second part focuses on the exception for libraries and suggests that a prohibition on multiple reproductions and a clear limitation as to numbers of reproductions should also be inserted into the exception.
5.2.1) The insertion of clear limitations to the exceptions relating to education
In the previous section, the Article explained that the exceptions applying to education, teaching, research and study do not have a clear limitation as to the amount of permissible reproductions. This is because the application of the two conditions in section 32 paragraph 1, which normally apply together with other additional conditions to the exceptions in the list of permitted acts and specific exceptions, results in the ambiguity of the exceptions
as a whole. This is because such application of these conditions raises the question of what amount of reproduction could be considered as 'not in conflict with a normal exploitation of the copyright work' and 'not unreasonably prejudicial to the legitimate right of the copyright owner'. There is no exact meaning of the phrases in the two conditions so it depends on the assessment of the Thai court, determining case by case, whether the amounts reproduced are in conflict with a normal exploitation and unreasonably prejudicial to the legitimate right of the copyright owner.
However, the recent decisions on exceptions of the Thai courts do not seem to help in interpreting or defining the exact meaning of the two conditions. They seem instead to create more misunderstanding about the amount of reproduction under the educational exceptions. This is because none of these judicial decision of the Thai courts indicates that multiple reproductions or the reproduction of the entire materials by the users, educational institutions158 and teachers are in conflict with a normal exploitation of the copyright work and unreasonably prejudicial to the legitimate right of the copyright owner. On the other hand, the Thai courts in several decisions on copyright exceptions seem to allow users or students to reproduce entire textbooks or make multiple reproductions of copyright materials where the numbers of the textbooks or materials in the library are not available to match the needs and numbers of the students in the institution.159 Hence, the educational exceptions under the Thai CA 1994 are not only a problem in themselves, but also the approach of the Thai courts in several decisions which allow the multiple and systematic reproductions or the reproduction of entire works is also a significant factor undermining the effectiveness of copyright protection in the Thai education sector. The fact that multiple and systematic reproductions of copyright materials or reproduction of entire textbooks by the users, students and librarians can be done under the current educational exceptions, is evidence of inadequate protection for the economic interests of the copyright owners.
Study of UK copyright law seems to provide a solution to the problems in Thailand. The UK approach sets a clear limitation as to the amount of reproduction under educational exceptions as well as excluding multiple reproductions of copyright materials from the scope of copyright exceptions. In this vein, the UK CDPA 1988 provides a number of exceptions to the exclusive rights granted to the copyright owner in order to enable reasonable use to be made of the work freely and without permission. However, the CDPA 1988 restricts the number of the permissible reproductions of copyright materials to a certain amount. For example, section 36 provides that reprographic copies or photocopying of passage from published works may be made by or on behalf of the educational establishment for purpose of non-commercial instruction provided that not more than one percent of any work may be copied in any quarter of the year and it is accompanied by a sufficient acknowledgement.160 Burrell and Coleman observe that an entitlement to copy one percent of a work applies not to any single act of copying but rather to the activities of an entire educational institution in any one quarter, so this means that a university cannot copy more than one percent of a literary work even if different faculties require different parts of the same work.161 However, even the little amount of 'no more than one percent' copying is also prohibited if a licence for such copying is available and that person making a copy knows or should have known of that fact.162 It is important to mention a draft amendment to the CDPA 1988 in a UK IPO report of 2009, where the idea of increasing the current 1% limit per quarter to 5% was rejected. The UK IPO was of the view that the UK Copyright Licensing Agency's 5% limit in its current licences clearly represents the upper limit that copyright owners in the UK are prepared to license voluntarily through such schemes and if the draft were to increase the limit within the exception to 5% what has previously been a maximum would be regarded as a minimum.163 Consequently, 5% of the work could then be copied freely in the absence of a license, meaning that the exception could conflict with the normal exploitation of the work and thus, fail the three-step test.164 Therefore, the UK IPO proposed that the 1% limit in section 36 of the UK CDPA should remain unchanged.165
A similar approach can also be seen in the several UK guidelines which indicate that an individual may photocopy an excerpt from a book of not more than one chapter or 5 percent, whichever is the least, without infringing copyright.166 For example, in order to assist users, the Publishers Association and the Society of Authors indicates in their guidelines that, for the purposes of fair dealing for research and private study only, they would normally regard the following as fair dealing, if in all other aspects the photocopying is within the scope of section 29 of the CDPA 1988: '...photocopying by the reader for his or her own use of: one copy of a maximum of a complete single chapter in a book, or one copy of a maximum otherwise of 5% of literary work...'.167
Importantly, the CDPA 1988 clearly indicates that an individual who makes a copy for himself or others who may make a copy for him are subject to certain requirements: such person making the copy must not know or have reason to believe that copies of the same material may be provided to more than one person at the same time for the same purpose.168 This requirement can help to prevent the users from carrying out multiple reproductions of copyright materials. This requirement is quite effective because in most circumstances, researchers and students will only be able to make a single copy for their own research or study, with no copying for wider dissemination. This approach is supported by Senftleben who indicates that this requirement can effectively prevent the making of multiple copies.169 This seems to be consistent with the UK fair dealing exception for research and private study, which only allows a student and a researcher to make a single copy for himself or a single copy for another person but does not cover multiple copying of extracts or articles.170 Senftleben asserts that national copyright legislation should determine how many copies are permissible and whether a work in its entirety or only extracts can be reproduced under the exception.171 Based on all these arguments, it is clear that by following the UK approach and removing the two conditions in section 32 paragraph 1 plus inserting a clear limitation as to the amount of reproduction with a clear prohibition on multiple reproductions, the problems relating to the multiple reproduction and the reproduction of the entire textbooks under copyright exceptions in Thailand will be automatically solved and the economic interest of copyright owners can be effectively protected.
The application of the UK approach will also help to limit the ability of the third party or photocopy shops to reproduce copyright materials under copyright exceptions. This can strengthen the copyright protection regime and provide better safeguards for the economic interests of copyright owners in Thailand. In this vein, the UK approach not only sets a clear limitation on the amount of reproduction under the copyright exception but also makes it more difficult for the photocopy shop or the third party, who merely reproduces copyright work for sale to students and researchers for the purpose of their private study, to benefit from the educational exceptions. Normally, the fair dealing exception can be available to others who are not researchers or students, because the CDPA 1988 does not require that the dealing or use which leads to copyright infringement must be undertaken by the researchers or students in order to be justified under the fair dealing exception. This means that it is possible for the students or researchers to employ or ask someone else, such as a research assistant or an agent, to act or photocopy on their behalf. Nevertheless, this possibility is very limited in practice. This is because the University of London Press case172 clearly indicates that the fair dealing exception for private study will cover only the private study of a person dealing with the copyright works for his own personal purposes and does not extend to third parties who produce copyright materials to the public for the purpose of others' private study or for sale to students.173 As the UK court ruled:
'It could not be contended that the mere republication of a copyright work was a "fair dealing" because it was intended for purposes of private study; nor, if an author produced a book of questions for the use of students, could another person with impunity republish the book with the answers to the questions. Neither case would, in my judgment, come within the description of "fair dealing".'174
157 Supasiripongchai, N, 'Copyright Exceptions and Digital Technology in Educational Institutions in Thailand' (2013), Volume 44, Number 7, International Review of Intellectual Property and Competition Law (IIC) 765, at 765-789. The final publication is available on springer's website at http://link.springer.com/article/10.1007%2Fs40319-013-0105-7 [Accessed February 20, 2014].
158 Supasiripongchai, N, 'Copyright Exceptions and Digital Technology in Educational Institutions in Thailand' (2013), Volume 44, Number 7, International Review of Intellectual Property and Competition Law (IIC) 765, at 765-789. The final publication is available on springer's website at http://link.springer.com/article/10.1007%2Fs40319-013-0105-7 [Accessed February 20, 2014].
159 The IP&IT Court Decision No. 784/2542 (1999).
160 Section 36 of the UK CDPA 1988; See also Burrell, R and Coleman, A, Copyright exceptions: The digital impact, (1st edn, Cambridge University Press, London 2005), at 128; and Senftleben, M, Copyright, limitations and the three-step test: An analysis of the three-step test in international and EC copyright law, (1st edn, Kluwer Law International, Netherlands 2004), at 75.
161 Burrell, R and Coleman, A, Copyright exceptions: The digital impact, (1st edn, Cambridge University Press, London 2005), at 128-129.
162 MacQueen, H, Waelde, C, and Laurie, G, Contemporary intellectual property: Law and policy, (1st edn, Oxford University Press, Oxford 2007), at 181.
163 UK Intellectual Property Office (IPO), 'Taking forward the Gowers Review of Intellectual Property: Second stage consultation on copyright exceptions' (2009), accessible at http://www.ipo.gov.uk/consult-gowers2.pdf [Accessed February 20, 2014], at 15.
167 Guideline of the Publishers Association and the Society of Authors (1965) from Colston, C and Middleton, K, Modern intellectual property law, (2nd edn, Cavendish Publishing Limited, Great Britain 2005), at 359; See also Groves, P, Sourcebook on intellectual property law, (1st edn, Cavendish Publishing Limited, Great Britain 1997), at 420.
169 Senftleben, M, Copyright, limitations and the three-step test: An analysis of the three-step test in international and EC copyright law, (1st edn, Kluwer Law International, Netherlands 2004), at 75.
172 University of London Press v. University Tutorial Press  2 Ch 601.
173 MacQueen, H, Waelde, C, and Laurie, G, Contemporary intellectual property: Law and policy, (1st edn, Oxford University Press, Oxford 2007), at 137.
174 University of London Press v. University Tutorial Press  2 Ch 601.