The Implementation of Anti-Circumvention Legislations in Thai Copyright System

Authors: Chuencheewin Yimfuang

Abstract:

The WIPO copyright treaty (WCT) was established by the World Intellectual Property Organisation (WIPO). This agreement required the contracting nations to provide adequate protection to technological measures to prevent massive copyright infringement in the internet system. Thailand had to implement the anti-circumvention rules into domestic legislation to comply with this international obligation. The purpose of this paper is to critically discuss the legislative standard under the WCT. It also aims to examine the legal development of technological protection measures in Thailand and demonstrate that the scope of prohibitions under the copyright Act 2022 (NO.5) is similar to the Digital Millennium Copyright Act 1998 (DMCA) of the United States (US). It could be found that the anti-circumvention laws of Thailand prohibit the circumvention of access-control technologies, and the regulation on trafficking circumvention devices has been added to the latest version of the Thai Copyright Act. These legislative evolutions have revealed the attempt to reinforce the legal protection of technological measures and copyright holders in order to be in line with global practices. However, the amendment has problems concerning the legal definitions of effective technological measure and the prohibited act of circumvention. The vagueness might affect the scope of protection and the boundary of prohibition. With this aspect, the DMCA will be evaluated and compared to gain guidelines for interpretation and enforcement in Thailand. The lessons and experiences learned from this study might be useful to correct the flaws or at least clarify the ambiguities embodied in Thai copyright legislation.

Keywords: Legal Development Technological Protection Measure, prohibition, circumvention, Thailand.

References:

[1] J. M. Besek, “Anti-circumvention laws and copyright: A report from the Kernochan Center for Law, Media and the Arts,” Colum. JL \& Arts, vol. 27, p. 385, 2003.
[2] J. De Werra, “The legal system of technological protection measures under the WIPO Treaties, the Digital Millennium Copyright Act, the European Union directives and other national laws (Japan, Australia),” in Adjuncts and alternatives to copyright: ALAI Congress June 13-17, 2001, New York, USA= Régimes complémentaires et concurrentiels au droit d’auteur: Congrès de l’ALAI, 2002, pp. 179–279.
[3] U. Gasser, “Legal frameworks and technological protection of digital content: Moving forward towards a best practice model,” Fordham Intell. Prop. Media Ent. LJ, vol. 17, p. 39, 2006.
[4] Moc News, (2022), Department of Intellectual Property, Sep. 2022. (Online). Available: https://www.ipthailand.go.th/images/26646/___Fi.pdf
[5] The Explanatory Memoranda of Thai Parliament, 2020, No.NR0503/38453.
[6] V. M. Gawas, “Doctrinal legal research method a guiding principle in reforming the law and legal system towards the research development,” 2017.
[7] A. Kharel, “Doctrinal Legal Research,” Available SSRN 3130525, 2018.
[8] T. Hutchinson and N. Duncan, “Defining and describing what we do: Doctrinal legal research,” Deakin L. Rev., vol. 17, p. 83, 2012.
[9] M. Van Hoecke, “Methodology of comparative legal research,” Law method, pp. 1–35, 2015.
[10] J. C. Ginsburg, “Legal protection of technological measures protecting works of authorship: international obligations and the US experience,” Colum. JL Arts, vol. 29, p. 11, 2005.
[11] The WIPO Copyright Treaty (WCT) (1996)
[12] G. Hinze, “Brave new world, ten years later: Reviewing the impact of policy choices in the implementation of the WIPO internet treaties’ technological protection measure provisions,” Case W. Res. L. Rev., vol. 57, p. 779, 2006.
[13] J. C. Fernández-Molina, “Laws against the circumvention of copyright technological protection,” J. Doc., 2003.
[14] L. N. Gasaway, “The new access right and its impact on libraries and library users,” J. Intell. Prop. L., vol. 10, p. 269, 2002.
[15] The Copyright Act (NO.2), B.E.2558 (2015).
[16] L. Boonruangsri, “Legal Issue on Technological Protection Measures According to Copyright Act, B.E.2537(1994),” Master Degree Thesis, Dhurakij Pundit Univ., Bangkok, Thailand, 2020. (Online). Available: http://libdoc.dpu.ac.th/thesis/Ladda.Boo.pdf
[17] The Copyright Act (NO.5) B.E.2565 (2022).
[18] The Digital Millennium Copyright Act A.D. 1998.
[19] N. Supasiripongchai, “The Development of the Provisions on the Protection of Technological Protection Measures (TPMs) in the Light of the Prospective Thailand-United States Free Trade Agreement (FTA) and Its Possible Impacts on Non-Infringing Uses under Copyright Exceptions in,” Comput. Telecommun. Law Rev., no. 1, pp. 21–43, 2013.
[20] J. Kuanpoj and N. Indananda, “Copyright in Digital Era - Technological Measure and the Protection of Public Interest: Best Options for Thailand,” Bangkok: WTO Watch The Faculty of Economics Thammasat University, 2007.