Copyright and educational exceptions in Thailand: A comparative study

Abstract

The thesis starts in Chapter 1 by providing the background to the development of the Thai copyright exceptions and the prospective Thai-US Free Trade Area (FTA) Agreements. In Chapter 2, I identify three major problems which arise from the inappropriate and unclear educational exceptions of the Thai CA 1994. The first problem is that the copyright law and its exceptions cannot effectively protect the economic interest of copyright owners but rather reduce the effectiveness of the copyright protection regime in Thailand as a result of three factors: the unclear educational exceptions; the problematic approaches to the copyright exceptions of the Thai IP Court; and the lack of a copyright collecting society (CCS) and a licensing scheme system in the Thai education sector. The second problem is that the Thai educational exceptions do not properly protect the moral right to be recognized as the author of the work in both the general and digital contexts. Finally, they do not support the long-distance education and lifelong learning policy of the Thai government as well as preventing educational institutions, teachers and students from the benefit of new digital technologies.The thesis recommends that the following tasks be carried out in order to solve the above problems. First, reforms must be made to the educational exceptions in the Thai CA 1994 in order to make them more restrictive and limited than at present. For instance, a clear limitation, a prohibition on multiple reproductions, and a requirement of sufficient acknowledgment must be inserted into the educational exceptions of the Thai CA 1994. Second, I recommend the introduction of digital copyright provisions on Technological Protection Measures (TPMs) and Electronic Rights Management Information (RMIs) into the Thai copyright system. This is necessary in order to ensure that educational materials can be made readily available online for distance education purposes with appropriate protection. These can also protect the economic interests of copyright owners in the digital environment by ensuring that only authorised persons access educational materials, not the public in general. Nevertheless, it is also necessary to ensure that non-infringing uses for educational purposes provided in the copyright exceptions of the Thai CA 1994 will be exempted from the violation of the prospective TPM and RMI provisions. Third, I argue that legislative reform to the educational exceptions and the introduction of the TPM and RMI provisions alone cannot completely solve the problem because the increased numbers of copyright infringements in the Thai education sector result from both the unclear exceptions and the lack of a CCS. Thus, the reforms of the exceptions and the introduction of new law must be carried out together with the establishment of the CCS and a licensing scheme system in the Thai education sector. Nevertheless, the establishment of the CCS without any legal controls upon its activities would result in further problems, so I contend that such establishment must be done together with the introduction of a regulation and a governmental body to prevent the CCS from abusing its licensing scheme or its powers in an anticompetitive way. Finally, the thesis points out several useful lessons arising from the study of the Thai copyright exceptions which could benefit global copyright protection and other countries. I have sought to state the law as it stood at the end of September 2010.