The study of the major problems arising from unclear copyright exceptions in Thailand gives several lessons for global copyright protection. The first lesson is that the uncertainty and unclarity about what copyright law allows under the exception is likely to bring some damage to the economic interests of copyright owners and to incentives for creativity in society, as well as making copyright protection regime ineffective because the infringers and users might rely on such uncertain and unclear provisions to reproduce copyright works and then escape from copyright infringement liability. In the example of Thailand, the two preconditions for most educational exceptions are unclear and as a result, it is difficult to indicate what amount of reproduction under the copyright exceptions should be considered as in conflict with a normal exploitation of the copyright work and unreasonably prejudicial to the legitimate right of the copyright owner. Therefore, the users rely on such uncertainty and assume that they can reproduce entire books or make multiple reproductions under the exceptions. It is necessary to have a clear picture about what is allowed under exceptions because uncertainty about the exceptions can cause significant problems for those who enforce the law and so allow infringers to escape liability in the end. This problem of unclear exceptions is also one of the factors which makes the copyright law and its exceptions ineffective in protecting the economic interests of copyright owners and leads to an increased quantity of copyright infringements in the Thai education sector.
The second lesson from Thailand is that the insertion of the conditions of the three-step test into the national copyright legislation as a means to comply with Article 9 of the Berne Convention and Article 13 of the TRIPs Agreement and then regard them as copyright exceptions in their own right is not the best mode of implementation because it can lead to more problems. In this instance, the fact is clear that the Thai legislators chose a convenient way to ensure that the CA 1994 fully complied with the obligation under the TRIPs Agreement by simply inserting the second and third conditions of the three-step test into the Act and then regarding them as preconditions to all copyright exceptions. This leads to further problems because the meaning of the two conditions are unclear, so it affects the operation of other exceptions in the Act, which normally require the two preconditions to be satisfied together without other additional conditions. Also, regarding these conditions of the three-step test as a copyright exception is clearly inconsistent with the objective of the test, which is to impose constraints on the exceptions to exclusive rights in national copyright laws rather than acting as copyright exceptions themselves. This also makes it more difficult for the national courts to interpret the two conditions because these criteria of the three-step test in the Berne Convention and TRIPs have been interpreted by the relevant international bodies such as the WTO Panel. Thus, if the national court interpreted these two conditions in an opposite direction to the provisions of the three-step test and the decisions of the WTO Panel, it might face challenge from other members of the WTO in the WTO dispute settlement proceeding. This already happened to the US in the WTO Panel Decision No WT/DS106, where the US had been challenged by the European Commission because its exceptions in section 110(5) do not comply with the three-step test; so the same situation can probably happen to other countries as well. Therefore, inserting the conditions of the three-step test into the educational exceptions is not the best way or a good example of implementation of Article 13 of TRIPs Agreement for other countries.
The third lesson from Thailand is that when the court does not play its role in clarifying the law and ensuring that the exceptions in the national copyright law comply with the three-step test, then it might become necessary for the government to consider making legislative changes in order to ensure that the economic interests of copyright owners and the incentive for creativity under the copyright protection regime will be protected. In the example of Thailand, it is clear that the court is not only silent about the issues relating to multiple reproductions and the reproduction of entire books but goes further to create two problematic approaches which weaken copyright protection in the Thai education sector and are clearly inconsistent with the three-step test.
The first approach allowed the reproduction of entire textbooks to be done under the exceptions for research and study when the numbers of the textbook in the library are not matched with the numbers and the needs of students, or the price of books is unreasonably expensive. In the second approach, the court interpreted the term 'not for profit' and held that such reproduction by the photocopy shops would not be considered as profit from infringing copyright works of others if done under order forms or employment contracts between the student and photocopy shops. These two approaches allow the students to reproduce the entire textbooks freely under the exceptions since most universities in Thailand do not have enough textbooks to match the number of their students, while the photocopy shops can escape from copyright infringement by relying on order forms from the students as evidence to prove that the profit granted from photocopying the copyright work is not from infringing copyright but is in exchange for the use of human labour instead. These clearly impaired the economic interests of copyright owners severely as well as reducing the effectiveness of the copyright protection regime in Thailand. In such a situation, it is time for law reform.
Other countries can learn from Thailand's experiences that without a clear prohibition on multiple reproductions and clear limitation as to the amount of reproduction, there is a possibility that the court might create some unique approaches inconsistent with the three-step test in order to allow photocopy shops and users to reproduce copyright materials under the exceptions regardless of whether such reproduction impairs the economic interest of copyright owners. This view is supported by several IIPA reports on the copyright protection in Thailand, which illustrate that the increased quantity of the copyright infringement in the Thai education sector results from the lack of a clear prohibition on the reproduction of entire textbooks and multiple reproductions and the misinterpretation of the three-step test by the Thai courts.267 In contrast, the UK approach clearly sets a clear limitation as to the amount of reproduction and a clear prohibition of the multiple reproductions under the exception as well
as making clear that the fair dealing exception for private study will only cover the private study of a person dealing with the copyright works for his own personal purpose and does not extend to third parties who produce copyright materials for the purpose of others' private study or for sale to students.268
There are two lessons to be learned from the study of guidelines for educational use. First, such guideline is very useful because it ensures some degree of certainty for educational institutions, teachers, librarians and users by providing assistance in determining how much of a work can be reproduced under the copyright exceptions. Second, the guideline should reflect the interests of copyright owners and other interest groups in society. So it should not be formulated by copying or imitating from the guidelines of other countries; all interested parties should be able to participate in its creation. This is because if all such groups are involved, it is likely that they will accept the amount of permissible reproductions and other provisions which they all agreed. In the case of Thailand, the guideline for education use from the Department of Intellectual Property (DIP) is not widely acceptable because the DIP did not allow foreign and national publishers, copyright owners and educational institutions to participate in the process of creating the guideline. So the guideline has little use in practice because it does not reflect the interests involved.
Final lesson from Thailand is that copyright law and its exceptions should support the protection of moral rights. The fact is quite clear that ignoring moral rights not only inflicts damage on the rights of authors supposed to be acknowledged as creators of the works but also damages the educational market and the economic interest of copyright owners.269 This is because the problems also undermine incentives for creativity such as academic prestige or reputation. For instance, the educational exceptions under the Thai CA 1994 allow the reproduction and uses of copyright works for educational purposes without a requirement of sufficient acknowledgement. As a result, academic authors who create work in order to gain prestige or reputation in the education sector may lose their motivations and incentives for creativity. The requirement of sufficient acknowledgement is not only a sufficient source of moral right but is also an important step towards the recognition of such rights since authors of such works normally rely upon continuing identification in order to build their reputation, careers and income.270 In order to ensure that the moral rights to be acknowledged as an author will be recognized, this Article recommends that the insertion of the requirement of sufficient acknowledgement into the exception for research in the Thai CA 1994 must be carried out.
267. See the IIPA special 301 reports on the copyright protection and enforcement in Thailand year 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, and 2013.
268. MacQueen, H, Waelde, C, and Laurie, G, Contemporary intellectual property: Law and policy, (1st edn, Oxford University Press, Oxford 2007), at 137.
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].
270. Harbert, E, 'In the shadow of Mt. Olympus: Could a revision of 17 U.S.C. §§ 1202 - 1204 bring them into daylight?' (2005), 13 UCLA Entertainment Law Review 133, at 138; See also Schlachter, E, 'The intellectual property renaissance in cyberspace: Why copyright law could be unimportant on the Internet' (1997), 12 Berkeley Technology Law Journal 15, at 32.