Does the Thai Copyright Law Permit Courts to Create New Exceptions to Copyright Infringement?

Abstract

In this article, the author attempts to determine whether the Copyright Act, B.E. 2537 (as amended) permits Thai courts to create new exceptions to copyright infringement, focusing on Section 32 of the Act.

To make the above-mentioned consideration more complete, the author refers to the three conditions on copyright exceptions stipulated in the Berne Convention (Paris Act, 1971), Article 9 (2), and the TRIPS Agreement, Article 13 (or the so-called “3-Step Test”), as these two international agreements bind Thailand. Additionally, due to the lack of binding guidelines on how to apply the 3-Step Test to the conditions or transform them into national laws, the author deems it necessary to make reference to the opinion rendered by the WTO Panel on United States – Section 110 (5) of the US Copyright Act (WT/DS160/R, 15 June 2000) and the explanations on the 3-Step Test. The explanations are contained in a Handbook on the WTO TRIPS Agreement (2020) and the Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971).

The result of this analysis has led the author to conclude that the Copyright Act does not grant Thai courts latitude to interpret it broadly. Based on this conclusion, the author suggests that, as long as amendment to the Copyright Act is pending, if there is any dispute, the defendant should look to the explicitly stated existing exceptions for legal authority.