Changes to Thailand’s Anti-Piracy laws by David Southern

Introduction

Anti-piracy laws are laws which protect intellectual property. Thailand complies with international standards for protection of Intellectual Property (“IP”).The legal concepts in Thai IP law are in line with international concepts, many of Thailand’s IP laws are borrowed from the US. Companies can seek international IP protection after registering in Thailand.

In IP law we talk about Copyright, Trademarks and Patents, which are the IP that business owners seek protection for. It’s important to understand what these terms means before reading further.

Copyright refers to laws which protect creators of works by giving them an exclusive right to authorize or prohibit them from using the work in a certain way unless they receive payment for use. Trademarks refer to markings on goods which distinguish them from others which include various combinations of words, names, symbols and colors.

Patents are rights granted by a government to inventors to manufacture, use, or sell an invention for a certain number of years. The invention must offer a technical solution to an existing problem.

The main law in Thailand concerning Copyright is the Copyright Act and the major law concerning Trademarks is the Trademark Act. We will focus on the Copyright Act in this article because we are focusing on copyright infringement. The Copyright Act prevents people from distributing copyrighted material such as creative and artistic works. Copyright comes into effect automatically on creation of the work by registering the copyright with the Department of Intellectual Property in Thailand which is important to determine the ownership. Not everything is copyrightable such as judicial decisions or the news of the day. There are also exemptions to copyright laws when it would be non-sensical to enforce them, including when the material is used for research or work study for a non-profit purpose or reproduction for judicial proceedings.

Enforcement of copyright laws in Thailand

Like many other countries, enforcement of copyright laws is selective because it is impossible to stop every act of copyright infringement. The most difficult areas to protect are online and mobile piracy.

Recently the Thai government tightened up its enforcement measures, with a raft of new measures and focused enforcement measures in notorious counterfeit markets such as Mahboonkrong Centre otherwise known as MBK.  This led to reduction in the number of counterfeit products on the market by 85% in the last few years. As a result of these efforts in April 2017, Thailand was removed from the Priority Watch List for intellectual property by the United States Trade Representative (USTR). That means that it is not longer considered a country where IP protection and enforcement measures are ineffective unlike countries such as China or India which remain on the list.

New Copyright Act

Thailand’s government has been working towards bringing its IP protection legal framework in line with international standards. Recently the Department of Intellectual Property made major amendments to the Copyright Act (B.E. 2537) which are largely based on the US Digital Millennium Copyright Act. Major changes were made to technological protection measures and limitation of liability for service providers and the notice and takedown scheme. In respect of the new notice and take down scheme, internet service providers are classified as:

  1. Intermediaries for data transmission
  2. System caching
  3. Data hosting tools
  4. Data locating tools

These service providers are subject to the IP law which requires them to cancel services for digital copyright infringers and those in categories 3 and 4 must also follow takedown procedures. Copyright owners may issue a notice directly to a service provider requesting it to remove or cease access to the data. Service providers should comply with the notice and takedown the data, if there is an objection they must notify the Copyright owner of any objection and if the Copyright owner does not file a law suit within a proscribed period of time the service provider can put the data back online. In respect of limitation of liability, service providers liability will be dependent on which category they classified as from 1-4 and their performance.

Why businesses and entrepreneurs should hire lawyers to protect their IP in Thailand?

Before starting a business and selling services or products in the Thai market, businesses should hire lawyers to get specialist IP law advice, about if and how they can protect their IP and to ensure that non-disclosure agreements are in place to protect their confidential trade secrets when dealing with prospective Thai partners and seek advice on the Thai market. They should also work closely with trade associations that prevent IP infringement such as the National Association of Manufacturers and International Intellectual Property Alliance.

Businesses should register IP rights in Thailand for their trademarks, patents, designs and copyrightable works and obtain an address for legal service in Thailand with a law firm. Silk Legal Co. Ltd is highly experienced in advising on IP law issues and registering IP. IP can be registered in Thailand and then put under global protection via the World Intellectual Property Organisation, therefore IP law work has a cross-border dimension, which is why business should work with international law firms with multinational teams of lawyers such as Silk Legal Co. Ltd on their IP issues. If a business’s products and services are counterfeited then Silk Legal Co. Ltd can take legal action to stop it and seek compensation.

If you would like more information about IP protection and enforcement in Thailand, please contact David Southern on David.s@silklegal.com or telephone:  +66 (0)2-107-2007 ext 326