Copyright or right to copy? Dispelling copyright confusion
For much of history, immovable property was considered as the most important asset that people could possess, use, sell, or buy. Today, intellectual property is a constant part of our daily life and plays an even greater role than physical property in the economic system. Despite its abstract and intangible nature, intellectual property is nonetheless well known to virtually everyone. Intellectual property can be just about anything related to products that result from creative processes including books, music, photos, computer software, advertising slogans, art, or new inventions.
Although physical property and intellectual property can be valuable assets, they differ in many aspects. Many concepts related to traditional property cannot be applied to non-physical objects. First, intellectual property is non-exclusive and the reproduction of an idea does not deny the use of the idea to the original creator. For example, if a person photocopies a book without permission of the author, the author’s original media is not stolen. For this reason, many people see no problem in using it for free. Also, it is easy to copy creative products that are subject to intellectual property law and in many cases it is nearly impossible to distinguish between the copy and the original. Take, for example, song or movie downloads from the Internet—after the download is complete, there is no difference between the original and the copy.
Of particular value to business people is the need to protect their rights in intellectual property. Therefore, the Thai legal system provides a comprehensive legal structure for the protection of technology and intellectual property rights. This legal framework includes the Copyright Act of B.E. 2537 (1994), Patent Act of B.E. 2522 (1979), Trademark Act of B.E. 2534 (1991), Protection of Layout-designs of Integrated Circuits Act, B.E. 2543 (2000), Trade Secrets Act of B.E. 2545 (2002), and Protection of Geographical Indication Act B.E. 2546 (2003). In this chapter we will analyze four main forms of intellectual property: copyrights, patents, designs, and trademarks.
Although the law is very clear in its provisions, many people still feel confused and often perpetrate copyright infringements. This is in part due to the fact that the awareness of intellectual property rights in Thailand is still extremely low and many people feel legitimate to use copyrighted (and trademarked) material when it is easily accessible. It is important to dispel however copyright confusion and realize that behind intellectual creations there are always efforts, hard work, patience, afflictions, investments, time and persistence. Copying other people intellectual contributions is wrong and prosecution of copyright infringements does not rely on subtle and tricky loopholes made by lawyers but on legal provisions. The lack of public awareness of individuals, universities, libraries, copy-shops, small businesses and companies regarding not only the importance of creative work but also its legal protection, generates confusion in the users and frustration on the right holders. This often leads to paradoxical cases where creators’ rights are constantly infringed upon by small and medium companies seeking to maximize their profits and where teenagers are arrested for making krathong baskets.
Learn more about copyright law in Thailand
Copyright (in Thai: líkasìt) is a form of protection provided by the law for an original and creative work of an individual or a juristic person. According to Section 6 of the Copyright Act, it includes literary, dramatic, artistic, musical, audio-visual, cinematographic, sound recording, and sound and video broadcasting work. This listing is only illustrative, not exhaustive, as the Copyright Act extends the protection to any other work in the literary, scientific, or artistic domain whatever may be the mode or form of its expression. The Act specifically excludes copyright protection for any idea, procedure, process, system, method of use or operation, concept, principle, discovery, scientific theory, or mathematical theory. For example, soap operas are a very popular genre of Thai television. Although most Thai soap operas use the same basic melodramatic plot and usually portray the upper class of Thai society, there is no copyright infringement because ideas as such cannot be protected. Besides, under Section 7 of the Copyright Act, laws, official decisions, and mere news of the day are also excluded from copyright protection. If news were protected by copyright, anyone reporting news without consent of the copyright owner would risk infringement and the spread of the news would be restricted. Similarly, if laws were protected by copyright, the observance of the law would not be assured. Hence, the above mentioned works are freely accessible and unprotected by copyright.
Copyright protection arises automatically at the time of creation of eligible work and registration is not necessary. However, formal registration of copyright with the Department of Intellectual Property can be useful as evidence of ownership in a court proceeding. Usually authors specify that the work is protected by copyright and place the copyright symbol (©) on their works. However, such a precaution is not required by law. Authors’ right has two separate elements: the moral right of the author and the economic right in the work.
Certain types of copyrightable works are entitled to moral rights protection. The protection of moral rights is based on the ground that an original work is the expression of the author’s personality. Under Section 18, the author of the copyright work is entitled to identify himself as the author (“right of paternity”) and to object to any distortion, mutilation, adaptation, or other modification of the work which would be prejudicial to his honor or reputation (“right of integrity”).
The protection of the economic right of an author is intended to allow the author or its holder to profit financially from his creation in order to compensate his creativity. Thus, copyright confers an exclusive right to the author of the work to reproduce, adapt, communicate to the public, and license the rights to other persons with respect to the work created by the author. These rights are exclusive in the sense that they belong only to the author who has right to preclude others from the use of the work. More specifically, the right to reproduction represents the core component of the copyright and indicates the right to reproduce copies of an original work. The term covers any technique of copying, imitation, duplication, sound recording, and video recording, whether of the whole or in part. For example, A cannot photocopy B’s book without B’s permission. The right to adaptation of a work is defined in Section 4 of the Copyright Act as a reproduction by conversion, modification, or emulation of the original work. In other words, it relates to the conversion of one medium into another medium. Thus, A cannot turn B’s literary work into a dramatic work or translate B’s work into another language without B’s permission. With regard to the right to make the work available to public, the definition of Section 4 of the Copyright Act is very broad and includes among others communication through performance, lecture, preaching, music, or any other means. For instance, A cannot play B’s songs for the customers of his restaurant without B’s permission. Finally, the right to license the work means that the copyright owner is the only person entitled to license the right to reproduction, adaptation, and communication to third parties on the terms that the owner may specify. For example, after writing a book about Thailand’s development in the 20th century, author A is entitled to grant publisher B permission to copy, modify, and distribute such work. Furthermore, under Section 17 of the Copyright Act, the author may transfer the economic right to other people for a limited duration or for the entire term of copyright protection. An assignment, other than by inheritance, must be in writing with the signatures of the transferor and the transferee.