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Taking on the Copyright Pirates in Thailand
Edward J. Kelly Ekelly@tillekeandgibbins.com
Hassana Chira-aphakul Hassana@tillekeandgibbins.com
Tilleke & Gibbins International Ltd.
C. Raiding the Premises
If the police agree to stage a raid, then the legal/technical raid team will lead the police to the infringers. It is a good idea to have an attorney and investigator accompany the raiding team to insure that all infringing titles/discs are seized, the appropriate responsible persons are arrested, and the infringers are dealt with appropriately. For end-user raids, the police will issue an order that any PCs searched by the raid team are not to be tampered with pending conclusion of the case by trial or settlement.
For online piracy, where software is distributed digitally over the Internet, it is obviously impossible to seize a great number of tangible infringing goods. Nevertheless, if the source of the pirate distribution center is located, the police will likely seize PCs and related hardware and software used in the distribution process.
Where the subjects are low-level retailers of CDs (i.e. hawkers and vendors that are not considered fixed retailers), it might not be necessary for an attorney to accompany the investigator's personnel on the raids. Legal difficulties are not apt to arise since most of these subjects will likely plead guilty to the charges.
D. Prosecution or Settlement
If the raid is successful, the copyright owner can then seek prosecution of the infringers or choose to make a private, out-of-court settlement in the presence of the police. Therefore, prior to the raid, the copyright owner should determine whether he or she would consider a settlement if the circumstances warrant such settlement. Such settlements would usually require the infringer to make a cash payment to the copyright owner and to sign a written undertaking not to resume infringing the owner's copyright in the future. The settlement negotiations would take place at the police station, with either an attorney or an investigator negotiating on behalf of the copyright owner. As the infringer is technically still under arrest, the copyright owner's bargaining position is strong. Nevertheless, the infringer may not choose to negotiate at that time, and it is not unusual to see negotiations last a month or two before the case is concluded.
If the copyright owner wishes to prosecute or cannot reach a settlement with the infringer, then the public prosecutor would handle the subsequent prosecution. Criminal trials are relatively straightforward and not overly prolonged. If for some reason the public prosecutor does not want to pursue the case vigorously, the copyright owner's counsel in Thailand can assist the prosecutor in bringing the case. In the case of high-volume or repeat infringements of copyrights protected in Thailand, it would be advisable to prosecute under the Copyright Act. While the Court can order the imprisonment of infringers, a first- time infringer is more likely to be fined, or at worst receive a suspended prison sentence. It is worth noting that the new IP&IT Court has been willing to levy substantial fines in Copyright cases. Conviction also gives the infringer a criminal record, with increased penalties likely for a second offense.
E. Effectiveness of the Action
In discussing the effectiveness of the above action, it should be noted that the useful effects of any enforcement action or series of actions may deteriorate over time. While the trend in Thailand is toward reduced levels of infringement, there is no mechanism for a copyright owner to immunize itself from piracy once and for all, either at the retail level or the manufacturer/distributor or end-user level. Infringers generally know which intellectual property rights owners are enforcing their rights and tend to adjust their stock accordingly. If, for example, a copyright owner relaxes its enforcement efforts over time, infringers may become emboldened, and the level of infringement may increase.
At the retail level, the best the copyright owner can hope to accomplish is to make it known among retailers that rights are vigorously protected. This should discourage many vendors from infringing but will not eliminate the problem completely. It may be necessary to periodically reinforce this message with new enforcement actions.
The ubiquitous nature of the Internet makes it very difficult to halt online piracy. The best we can hope for is to create a deterrent environment and try to contain the problem.
In the short term, criminal enforcement actions under the Copyright Act should be quite effective, particularly as these actions remove the seized goods from the market. End-user raids are seen as a most effective anti-piracy tool, especially when heavily publicized, and such raid actions are known to create a deterrent effect.