The cause of this problem is that the educational exceptions in section 32 of the Thai CA 1994 do not contain the requirement of sufficient acknowledgement along with the lack of a Copyright Collecting Society (CCS) in the Thai education sector to provide licences for those who wish to translate English-language textbooks into Thai for publication.77 With the gap in the educational exceptions and the lack of a CCS, lecturers can routinely include significant excerpts from English-language textbooks in their own materials without giving proper credit or acknowledgement.78 Thus, the IIPA demanded that the Thai Government modernize or improve the educational exceptions and also establish a CCS in the Thai education sector in order to allow those who wish to translate English-language materials to obtain the appropriate licenses for such production.79
Most reports from the IIPA argued that this problem must be solved as soon as possible because it inflicts significant damage not only on the educational market and economic interest of copyright owners in Thailand but also on moral rights and the incentive
for creativity of the authors who are supposed to be acknowledged as creators of the works.80 In this vein, the lack of a requirement of sufficient acknowledgement in the educational exceptions can also undermine economic incentives for production and other incentives such as those of academic prestige or reputation.81 Without the exceptions supporting moral rights to be acknowledged as the authors of the works, academic authors who create work in order to gain prestige or reputation in the education sector may lose motivations and incentives for creativity. Thus, the exception supporting the moral rights is not only aimed at protecting authors but also at promoting greater creativity to benefit the educational market and the public in the end.82
4) The current approach in Thailand and its problems with the three-step test
In the previous section, the article mentioned that several reports indicated that if Thailand continues to use its current legal approach to the copyright exceptions, it will have a problem about whether the exceptions under the CA 1994 comply with the three-step test. In this section, the article will consider why the current legal approach to the exceptions in Thailand will have this problem. The current approach to copyright exceptions seems to have no problem in satisfying the requirement of 'certain special cases' because the exceptions of the CA 1994 is based on a list of permitted acts which only allow certain purposes or uses to be exempted and also contains the specific exceptions which only apply to certain types of works and certain purposes of use. Importantly, it is still unclear whether or not the two conditions in section 32 paragraph 1 can be applied as a general exception like fair use. Presently, the Thai Court only allows the two conditions to apply as pre-conditions together with other additional conditions in the exceptions in the list of permitted acts in section 32 paragraph 2 and the specific exceptions in section 33, 34, 35, 36, and 43.83 Therefore, the exception in the Thai copyright law is still limited to certain special cases. The issues of whether or not the two conditions in section 32 paragraph 1 should be applied as a general exception and, if they can be applied as a general exception, whether they will satisfy the requirement of certain special cases will be discussed in next section.
However, it is clear that the current legal approach to the copyright exceptions in Thailand is unlikely to pass the second and third criteria of the three-step test. By allowing the wholesale reproduction of entire textbooks and multiple reproductions to be carried out under the exception for educational purposes can be considered as in conflict with the normal exploitation of the work which should not be permitted under the exceptions at all. Senftleben asserts that a conflict with normal exploitation arises where multiple reproductions or systematic reproductions are made and also where copies are made of entire works.84 He points out a practical example of photocopying, which cannot be permitted if it consists of reproducing a very large number of copies because that conflicts with a normal exploitation of the work.85 But if a small number of copies is made, photocopying may be permitted without payment, especially for educational purposes.86 The key point is that if such photocopying or reproduction is likely to compete with the original works and the authors of relevant works are deprived of a typical major source of income, then it is conflict with a normal exploitation of the works and cannot be permitted.87 It is quite clear that the approach to the copyright exceptions in Thailand, which allows multiple reproductions and the reproduction of entire textbooks, also deprives a typical major source of income of the authors and competes with the original works in the same educational market, so it clearly conflicts with a normal exploitation of the works.
The current approach to copyright exceptions also does not meet the third condition of the three-step test, which requires that the national copyright exception must not unreasonably prejudice the legitimate interest of copyright owners. In this aspect, this requirement seeks to safeguard the author's interest in the right of reproduction and other legitimate interests that authors might have.88 The term 'interest' also encompasses the possibility of depriving an author of economic value from a work. The prejudice can be regarded as unreasonable if such amount of reproduction under the exception is inappropriate or unfair because of excessiveness in amount or degree.89 However, the harm flowing from an exception can be reduced to a reasonable level if the payment of equitable remuneration is made to the copyright owners.90 This means that unreasonable prejudice to the interest of copyright owners can be avoided if the payment of equitable remuneration or fair compensation has been made to the copyright owners. In case of photocopies, there would be no unreasonable prejudice to the legitimate interest of the author if adequate remuneration is paid, so the establishment of the CCS and its licensing scheme system, which can ensure that copyright owners receive the payment of equitable remuneration, will help to avoid an unreasonable prejudice to be caused.91 Nevertheless, in the case of Thailand it is clear that the exception allows the photocopying or reproduction of entire books and multiple reproductions without the payment of equitable remuneration to copyright owners. Since there is no CCS or licensing scheme system in the Thai education sector, it is difficult for the copyright owners to collect remuneration from the users and photocopy shops, so the exception of the CA 1994 cannot avoid unreasonable prejudice to the interest of copyright owners and thus, does not satisfy the third requirement.
In fact if the exception cannot pass the second criterion, there is no need to consider the question of whether or not the exception causes unreasonable prejudice to the legitimate interest of copyright owners. Senftleben explains that if a conflict with a normal exploitation arises, it means that the test procedure automatically comes to an end; the exception does not comply with the three-step test and thus, cannot be permitted regardless of whether or not equitable remuneration is paid.92 This is because the payment of equitable remuneration has no influence on the decision of whether or not an exception conflicts with a normal exploitation since only an unreasonable prejudice to legitimate interest can be prevented in this manner.93 Therefore, in the case of Thailand, the current approach to copyright exceptions has failed to satisfy the three-step test since it cannot pass the second criterion. The issue of whether or not the proposed changes recommended in this article can satisfy the three-step test will be discussed in the next section.
5)What should be the solution to the problems in Thailand?
The previous section indicated that the educational exceptions under the Thai CA 1994 do not provide proper protection for the economic interests of copyright owners. However, this section recommends that in order to solve the major problems mentioned in the previous section, it is necessary to reform the educational exceptions in the Thai CA 1994 generally by making them more restrictive and limited than at the present. Several changes need to be made to the provisions in order to achieve this goal. Firstly, section 5.1 recommends that the Thai Government needs to clarify that the two conditions in section 32 paragraph 1, which come from the Berne three-step test, should not be applied as a general exception and should be removed as such from the provisions, since they are the cause of ambiguity and uncertainty in all the educational exceptions.
Second, the exceptions applying to libraries, teaching, research and study under the Thai CA 1994 need to be reformed because they allow reproductions of educational materials by the users without a clear limitation as to the amount of reproduction and without prohibition on multiple reproductions. Thus, this Article recommends in section 5.2 that a clear limitation as to the amount of reproduction and a clear prohibition on multiple reproductions should be inserted into the educational exceptions in the list of permitted acts and the specific exception for libraries. This involves looking at the educational exceptions in the UK and US copyright laws, which provide a clear limitation as to the amount of reproduction. This section also recommends that the guidelines for education which reflect the interests of copyright owners and other groups of interests in the Thai education sector need to be reformulated in order to help users, students, and other relevant parties to determine the appropriate amount of reproduction under copyright exceptions.
77 Supasiripongchai, N, 'Copyright infringement and educational exceptions in Thailand: What should be the solution to the problem of copyright infringement in the Thai education sector?' (2011), in WIPO-WTO Colloquium Papers: Research Papers from the WIPO-WTO Colloquium for Teachers of Intellectual Property Law 2011, (published by the WIPO Academy of World Intellectual property Organization (WIPO) and the Intellectual Property Division of World Trade organization (WTO), Geneva Switzerland, August 2012). 133 – 151 Accessible at http://www.wto.org/english/tratop_e/trips_e/wipo_wto_colloquium2011_e.pdf [accessed February 20, 2014]
78 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 94.
81 Supasiripongchai, N, 'Copyright protection in Thailand: Should the establishment of the copyright collecting societies (CCS) and licensing scheme system be the solution to the problem of copyright infringement in the Thai education sector?' (2012), Issue 3 Intellectual Property Quarterly (IPQ) 17 3, at 173-200.
82 Supasiripongchai, N, 'Copyright protection in Thailand: Should the establishment of the copyright collecting societies (CCS) and licensing scheme system be the solution to the problem of copyright infringement in the Thai education sector?' (2012), Issue 3 Intellectual Property Quarterly (IPQ) 17 3, at 173-200.
83 International Intellectual Property Alliance (IIPA), 'International intellectual property alliance 2005 Special 301 Report on Copyright Protection and Enforcement in Thailand', accessible at http://www.iipa.com/rbc/2005/2005SPEC301THAILAND.pdf [Accessed February 20, 2014].
85 Suhl, N, 'Moral rights protection in the United States under the Berne Convention: A fictional work?' (2002), 12 Fordham Intellectual Property Media and Entertainment Law Journal 1203, at 1214.
88 Ibid at 70, 162 and 197.
93 Ibid at 131.