The US approach also allows the librarian to copy an entire work or a substantial part of the work from its collection where the users or other libraries make their request in section 108(e). Nevertheless, this section allows such reproduction to be made only if the copy becomes the property of the user and the librarian has had no notice that the copy would be used for any purpose other than private study, scholarship, or research. Further, section 108(e) has an additional condition that the library must conduct a reasonable investigation to determine that a copy of the copyright work cannot be obtained at a fair price.221 The additional condition seems to be reasonable since section 108(e) allows a librarian to copy an entire work. Thus, it imposes more restrictive conditions than section 108(d), which allows the librarian to copy only a short work such as a journal article. This additional condition also appears in section 108(c), which allows the librarian to reproduce published copyright works for preservation purposes. It is important to note that the US Copyright Act provides similar limitations as to the amount of reproduction for published and unpublished works. In this instance, section 108(b) permits the librarian to make three copies of the unpublished work for the purposes of preservation or for deposit for research use, while section 108(c) also allows the librarian to make three copies of a published work for the purpose of replacement of a copy. However, the reproduction of the published works in section 108(c) seems to require the further condition that before the library can make copies of a published work, it must make a reasonable effort to conduct an investigation in order to determine that an unused replacement cannot be obtained at a fair price.222 The conditions for making preservation copies of unpublished works in section 108(b) seem to be considerably less rigorous than the conditions for published works in section 108(c) because the librarian can make a copy of unpublished works in its collection as long as the copy is solely for preservation. But if the librarian wants to reproduce the published work, it must determine the condition of the original work and then conduct an investigation of the market to confirm that an unused replacement is not available.
Section 108(e) also contains the same concept since it too requires that before the librarian can make the copy for private study, scholarship, or research, it must conduct a reasonable investigation by searching the market for any copy in order to conclude that a copy of the copyright work cannot be obtained at a fair price. Such investigation must look into all commonly-known trade sources in the US and will require resort to the publisher or other copyright owner if the copyright owner can be located.223 Since section 108 does not define the meaning of a fair price, the librarian must make the decision on whether such price is fair based on such investigation. Such methods of conducting an investigation into the availability of the works on the market at a reasonable price cannot be found in the Thai CA 1994. The UK IPO also support this feature in its report on draft amendment by stating that such copying can only be carried out if it is not practicable to purchase a copy in the market and it believed that this feature will help to prevent the proposed exception from interfering with the normal exploitation of the work.224 Thus, this method which is the main feature of the US approach should be inserted into the exception for libraries in Thailand. It will help to solve the problematic approach of the Thai courts which seems to favour the interests of users more than the economic interests of copyright owners by allowing the reproduction of the entire textbooks without taking into account of the availability of the books in the market.
In brief, these examples illustrate that both UK and US approaches provide a clear limitation as to the amount of reproduction by librarian and a clear prohibition on multiple reproductions. They also provide the idea about how to set a clear limitation on the amount of reproduction and a clear prohibition of systematic and multiple reproductions in section 34. The insertion of such limitations and prohibitions would make the exception for libraries more certain, which would be better than relying on the two conditions in section 32 paragraph 1. Also, the introduction of the method of conducting an investigation into the availability of the works on the market from the US approach to the exception for libraries in section 34 will help to safeguard the economic interests of copyright owners, while the introduction of the signed declaration system from the UK approach will help to protect the librarian from potential infringement of copyright.
5.2.3) The need for guidelines
It is true that the guideline for educational use is not the law, so it does not have binding effect on the people and cannot prohibit users from reproducing the works in ways that exceed permissible amounts, or prohibit multiple reproductions. However, the guideline is very useful because it provides the users with some certainty that if they reproduce the works within the permissible amounts indicated, then they are unlikely to infringe copyright in the works or get into trouble with the copyright owners. D'Agostino notes that the conflicts over the unclear scope of the copyright exceptions can be solved by the formulation of guidelines because they can help to clarify and make the exceptions more certain.225 Similarly, Guibault explains that guidelines for educational uses have succeeded in providing educators and users with some certainty as to what is acceptable under the copyright exceptions while preventing copying where permission could reasonably be requested and where the market or the value of the works is likely to be affected.226 Likewise, Burrell and Coleman state that a guideline is an important instrument which provides users, educational institutions and libraries with a degree of certainty.227 For instance, the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals, which is the most important guideline in the US, also aims at providing some degree of certainty for users by setting a minimum standards for educational use.228 They believe that the guideline for education use should not be copied from other countries, but should be formulated by the interested parties in that country.229 They also explain that although it is possible to copy the guideline of the US and then use it in the UK, this might not bring the desired result because the guideline was reached after negotiations between interested parties over a number of year, so it has broad support from interested parties which cannot be easily imitated or replicated in a short time.230 This position is also supported by the UK IPO which states that guidelines should be formulated in consultation with copyright owners where appropriate, while universities and libraries are best placed to issue their own guidelines.231 The UK IPO also believes that the amount of a work that can be reproduced under the exceptions needs to be indicated in the guideline.232 In this aspect, it is clear that the guideline is not a law, so it cannot prohibit the users from doing illegal reproductions of copyright works but it can help to provide some degree of certainty for the users about what acts are permissible under the copyright exceptions of the Thai CA 1994 and how to avoid copyright infringement charges.
In the UK and US, guidelines are commonly issued by the CCS or universities advising the students on the extent to which they can make copies of materials for research and private study purposes. The situation in Thailand seems to be different because there is no CCS in the Thai education sector; the educational institutions also cannot issue guidelines because the exceptions are unclear, so no one knows the exact amount permitted under the copyright exceptions.233 The Department of Intellectual Property (DIP) attempted to solve this problem by formulating a guideline for education which fixes the amount of permissible reproduction of copyright materials.234 Then, the guidelines were distributed to students, lecturers and the general public in 2007, intended to serve as a manual for the users of copyright works by reducing the risk of copyright infringement in books and other copyright works.235 However, the guideline is still problematic and not popular among the public because it was formulated purely by the DIP without the participation of affected parties such as users, copyright owners and publishers. Presently, the current copyright guideline provided by the DIP does not seem to satisfy all suggestions in the previous section and does not create much certainty for the users. It does not clearly prohibit the reproduction of entire textbooks or multiple reproductions. Hence, the IIPA requested in several of its reports that the affected parties such as the US publishers which have more experience in creating similar guidelines for other countries should be permitted to participate in the formation of such guidelines.236 The main reason for the request to participate is because the decisions of the Thai courts regarding the scope of allowable reproduction can be easily misinterpreted in the process of formulating guidelines; so the IIPA wanted the guideline to make clear that wholesale reproduction of academic materials without permission and payment is impermissible.237
It is undeniable that the guideline is widely recognized because it was created and based on aggregation and compromising between the copyright owners and other interest groups. Thus, it is necessary for the Thai Government and the DIP to ensure that their guideline relating to education area reflects the interests of copyright owner and the users' interests. Since the current guideline of the DIP does not cover reproduction by libraries and educational institutions, this Article recommends that such guidelines should explain not only what issues need to be considered when a student reproduces copyright materials but also what should be considered when an educational institution distributes copyright materials outside its classroom or premises238 or when a librarian makes copies on behalf of users or students for the purpose of research and study. This will also help to solve the problem about how much of a work can be reproduced by educational institutions, teachers, and librarians and will at the same time provide great assistance for all users. Thus, the formulation of guidelines which reflect the interests of the copyright owner and other groups of interests in the Thai educational sector must be done alongside the changes and improvements of the educational exceptions in the Thai CA 1994.
5.2.4) The insertion of the requirement of 'sufficient acknowledgement'
As explained in previous section, the educational exceptions in the Thai CA 1994 provide a specific exception for 'use as reference' in section 33 but the operation of this section in practice is clearly separate from other educational exceptions. This means that if a defendant reproduces copyright materials with sufficient acknowledgement of the creators of the works, then he can rely on the specific exception for 'use as reference' in section 33. Nevertheless, if he reproduces such works without making any sufficient acknowledgement to the creator of the works, then he cannot rely on the specific exception for 'use as reference' although he can still rely on other educational exceptions in the list of permitted acts in section 32 paragraph 2. This is because most copyright exceptions in the list of permitted acts in section 32 paragraph 2 in the Thai CA 1994 do not contain the requirement of sufficient acknowledgement.
In order to solve the problem of moral rights in Thailand, this article recommends that the requirement of sufficient acknowledgement be inserted into the educational exceptions in the list of permitted acts in section 32 paragraph 2. Inserting the requirement of sufficient acknowledgement into the educational exceptions in the list of permitted acts in section 32 paragraph 2 would allow these exceptions to support the protection of the moral right to be identified as the creator of the works. This should be better for the protection of moral right than relying on the specific exception for 'use as reference' in section 33 alone. The Thai Government should follow the UK approach because many educational exceptions under the CDPA 1988 require 'sufficient acknowledgement' as one of the conditions. For instance, the fair dealing exception for research in section 29(1) requires the defendant to satisfy four conditions before relying on the fair dealing exception for research.239 First, such dealing must relate to literary, dramatic, musical or artistic work and second, such use of works must be for the purposes of non-commercial research. Third, the dealing must be fair and finally, the author and his work must be sufficiently acknowledged by the defendant in order to be exempted under the fair dealing exception. Without sufficient acknowledgement, the defendant cannot benefit from the fair dealing exception for the purpose of non-commercial research. The condition of sufficient acknowledgement is based on the fact that academic authors often rely on previous works in order to create a new one.240 Nevertheless, this condition of sufficient acknowledgement, which normally applies to quotation, can be dispensed with under section 29(1B) which stipulates that no acknowledgement is required in connection with fair dealing for non-commercial research where it is impossible for reasons of practicality or other reasons.
The exception for use for instruction in section 32(1) of the UK CDPA 1988 also requires the satisfaction of a condition of sufficient acknowledgment to be exempted under this exception. Such copying or use of a literary, dramatic, musical or artistic work in the course of instruction or in preparation for instruction must satisfy four conditions. First, such copying must be done by a person giving or receiving instruction and second, such instruction must be for non-commercial purposes. Third, copying must not be done by means of a reprographic progress, for example, not by photocopying.241 Finally, copying or use of the copyright works in the course of instruction must be accompanied by a sufficient acknowledgement in order to be exempted. This exception can be applied to both published and unpublished works.242 Thus, both the teacher and students can benefit greatly from this exception as long as such copying is done by a person giving or receiving instruction with a sufficient acknowledgement.
221 Section 108(e) of the US Copyright Act.
222 Section 108(c)(1) of the US Copyright Act.
223 The United States Copyright Office (USCO), 'Circular 21: Reproduction of copyrighted works by educators and librarians' (2009), accessible at http://www.copyright.gov/circs/circ21.pdf [Accessed February 20, 2014], at 16.
224 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 40.
225 D'Agostino, G, 'Healing Fair Dealing? A Comparative Copyright Analysis of Canada's Fair Dealing to U.K. Fair Dealing and U.S. Fair Use' (2008), 53 McGill Law Journal 309, at 355.
226 Guibault, L, Copyright limitations and contracts: An analysis of the contractual overridability of limitations on copyright, (1st edn, Kluwer Law International, London 2002), at 72.
227 Burrell, R and Coleman, A, Copyright exceptions: The digital impact, (1st edn, Cambridge University Press, London 2005), at 268.
230 Ibid at 268-269: See also D'Agostino, G, 'Healing Fair Dealing? A Comparative Copyright Analysis of Canada's Fair Dealing to U.K. Fair Dealing and U.S. Fair Use' (2008), 53 McGill Law Journal 309, at 350.
231 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 32.
233 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]
236 International Intellectual Property Alliance (IIPA), 'International intellectual property alliance 2009 Special 301 Report on Copyright Protection and Enforcement in Thailand', accessible at http://www.iipa.com/rbc/2009/2009SPEC301THAILAND.pdf [Accessed February 20, 2014]; See also International Intellectual Property Alliance (IIPA), 'International intellectual property alliance 2008 Special 301 Report on Copyright Protection and Enforcement in Thailand', accessible at http://www.iipa.com/rbc/2008/2008SPEC301THAILANDREV.pdf [Accessed February 20, 2014].
238 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]
239 Section 29(1) of the CDPA 1988 stipulates: 'Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement'.
240 Bently, L and Sherman, B, Intellectual property law, (3rd edn, Oxford University Press, Oxford 2009), at 199.
241 The term 'reprographic progress' in the third requirement of section 32 is defined by section 178 as a process for making facsimile copies or a process involving the use of an appliance for making multiple copies and it includes any copying by electronic means in case of a work held in electronic form but does not include the making of a film or sound recording. This means that instructor can copy original works as long as such copying is not by means of a reprographic progress. For this reason, photocopying, scanner, making facsimile copies through facsimile machines, printouts of electronic materials or electronic copies of original materials cannot be justified under specific exception for purpose of instruction under section 32(1) since these acts fall under the definition of 'reprographic process'. Ibid at 211-212; and see also section 32(1) of the UK CDPA 1988.