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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.
The Copyright Act does not provide for statutory compensation for the owner of an infringed copyright. Compensation for actual proved damages may be obtained through the filing of suit in Civil Court.
The basic tort provision of the Thai Civil and Commercial Code is Section 420, which states that "a person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right, is said to commit a wrongful act and is bound to make compensation therefor." Infringement of copyrights is an unlawful act that injures the rights of the copyright owner. Therefore, Section 420 would apply to copyright infringement.
A. Detailed Procedure
In preparing a civil case, it is necessary to conduct investigations similar to those discussed above in relation to criminal cases. These would aim to determine the identity of the infringer and the location and quantity of infringing goods. In addition, it is advisable to consider the amount of provable damages and to determine whether the infringer has assets to pay any likely judgment.
All cases, including civil, involving intellectual property disputes must be filed with the IP&IT Court, as the forum with exclusive jurisdiction over IP matters.
B. Effectiveness of Action
For now, civil suits are much less cost effective than criminal actions because of the length of trial, the modest-to-poor economic status of the typical infringer, and difficulty in proving damages. Unless there were large actual damages (a claim of more than US$10,000), a civil action would not likely pay for itself. Because of the effective criminal remedies available, it will not usually be fruitful to initiate a civil action for past damages due to copyright infringement, particularly where the infringer has been effectively stopped from future infringement by a successful criminal action.
The most effective action against copyright piracy in Thailand is still the criminal action under the Copyright Act. Efforts by many copyright owners over the last decade have had some measurable impact on the production, trade, and export of a wide variety of pirate products. However, there is a great deal of room for improvement. The police raid action can be reasonably effective as a treatment of the piracy problem, but it will never be a cure. Copyright owners can act via local industry groups, lobbyists, talent (in the case of music and film), and legal representatives to create momentum toward the kind of political will that is needed in Thailand to assure proactive copyright protection. In addition to enforcement campaigns, copyright owners are urged to adopt policies in Thailand that are geared to educate the population about the necessity of proper respect for intellectual property rights. With equal resources devoted to public education initiatives, lobbying for legal reform, and strict enforcement of existing copyright law, it is hoped that the software, music, film, and publishing industries can flourish in Thailand in the same way that the industries have developed in other parts of the world.