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Liability for Clickbait under Thai Copyright Law

CHAPTER 1

GENERAL INTRODUCTION

 

  1. The description of the issue

You will never believe what happened next …

Take this question to see which character you are on …

This the biggest mistake you can make …

Have you ever seen these types of headline? Of course, you have seen clickbait everywhere, although you are not aware of it.

As technology advances, new ways of communication and information are constantly being created Social media. One consequence of this situation is that the Internet has become the most significant communication and information sources so people can communicate with others and access information through Internet. Unfortunately, some people discovered a way generating revenues from this by using a new tactic called ‘Clickbait’. Indeed, Clickbait is a content that purposely misrepresents or over-promises in order to get users to a particular website.[1]This is because the aim of clickbait websites is to solely increase webpage views. Thus, the more and more contents are necessary to fulfill its sites. Generally, Clickbait captures users with a sensationalist and snappy headline but then cannot deliver on the implied expectations of the users.[2] Furthermore, the point to be noted here is that many of these sites steal contents from others which means it may be considered as a copyright infringement.[3]

To understand what the topic is, this dissertation will examine how money is earning from clickbait websites and why should we avoid it. Also, to whom should the liabilities of clickbait issue be addressed to; only the websites’ owner or include others being participated with by considering the UK and US law. Interestingly, there is no provision obviously stated that clickbait is illegal in Thailand. It maybe because the Thai Act is not up-to-date enough to cover the click-baiting defences that using the new tactic of technology. Hence, this dissertation will seriously discuss to found the measures for tackling the problem.

  1. The significance of the issue

 

Facebook is the most famous social network sites worldwide (April 2018), ranked by number of active users.[4] It has also been observed that one strategy that many administrators of Facebook pages including journalists, bloggers and marketing agencies have begun to use to attract readers to their message is to use the “clickbait” headline that connects to the hyperlink to return to their story.[5] This means that they have more followers and they are more famous. Additionally, most of these contents under the links posted are not created by themselves. They took those articles from others. In this regard, this is how the site owners get the cash due to the fact that website owners will be paid in agreement with the number of clicks or followers on their page. It can be said that the more the website is being reached, the more revenue the page owner generates.[6]

Particularly, click-baiting becomes a seriously issue with the ever increasing numbers of these contents. Therefore, is it all right to help clickbait website owners gain a lot of money while they are doing nothing but waiting for the click? – this question brings me to this issue, called … Clickbait

It has become increasingly clear that click-baiting is a copyright infringement and we should make sure that whether existing Thai Copyright law are adequate to deal with this issue. If this is not the case, then we may look for a model law that is not only effective to address this online copyright infringed contents but also appropriate for applying to clickbait offences. By doing this, U.K. law and U.S. law may provide suitable examples.

1.3 The structure of the dissertation

This thesis is concerned with the issue of the clickbait liability under copyright law in Thailand. It is divided into six chapters. Overall, the dissertation begins with an introduction and ends with a conclusion.

Chapter one is the introductory chapter. Its emphasized the general description of the clickbait, the important investigation of the issue as well as an overall structure of the dissertation.

Chapter two provides the characteristics of clickbait including a clear scope and definition of clickbait and how do clickbait generates revenues on website in order to understand what type of contents that should be considered as infringed or not and the reason why the clickbait website owners intend to increase the webpage views.

Chapter three examines the topic in regard to the liability for clickbait under the United states of America (U.S.) and the United Kingdom (U.K.) copyright law by conducting a comparative study. This is because this dissertation focuses on intellectual property law in the area of copyright, which is the most significant element in the infringement. Whereas the U.S. copyright law provides the provisions to address with this modern kind of infringement and also has the doctrine of fair use, the U.K. law has fair dealing doctrine that is able to determine the clickbait contents infringement. This chapter will be separated into two main parts. In the first part, it examines the liability for clickbait under U.S. law. and others relevant laws. In the second part, its focuses on the same topic but under the U.K. law.

Chapter four highlights

Chapter five concludes the overview of the dissertation. Also, it chisels the material discussions to be clearer and easier. In addition, this dissertation argues that Thailand does not have adequate specific legal solutions to protect copyright works on the Internet. The purpose of the study is to construct a legal framework to provide effective copyright protection solutions.

CHAPTER 2

 

NATURES OF CLICKBAIT

 

2.1 Introduction

 

By 2014, the omnipresence of clickbait on the website had began to take a backlash against its use.[7] The Onion newspaper launched ClickHole which is a new website that parodied clickbait site such as BuzzFeed and Upworthy.[8] Also, in August 2014, Facebook declared that it is taking technical measures to reduce click-baiting on its social networks by adjusting the method that the users see articles on its website in order to differentiate clickbait from other kinds of content.[9] It can be observed that advertisement blockers and clicks have affected clickbait contents since websites go forwards sponsored ads and native ads where the content matters more than the click rates.[10]

First and foremost, in order to understand what type of contents that should be considered as infringed or not, what is the liability of the owners of the website and what are the other concepts in relation to Copyright law which may be an appropriate principle in dealing with this issue that the Thai copyright law should follow, this chapter will introduce to fundamental concept of the scope and definition of clickbait, how do clickbait generates revenues on website as well as characteristic of clickbait.

 

2.2 Scope and definition of clickbait

 

Clickbait is defined as “provocative or sensationalistic headline text that entices people to click on a link to an article, used as publishing tactic to increase webpage views and associated ad revenue”.[11]For example, “You will never believe what happened next …”, “Take this question to see which character you are on …”, “This the biggest mistake you can make …” and “10 things you should never tell your boyfriend”. Typically, the clickbait headlines are considered as a form of website content having a vague meaning but interesting enough to gather many readers to click on the subject heading from their Facebook page to the communicators’ webpages where the readers can find more information.[12] This is because these headlines are sensational in nature and designed to increase reader and induce curiosity relating the contents they refer to without revealing important information.

In this regard, it should be stressed that these headlines purpose to exploit the “curiosity gap” giving just enough information to make curiosity, but not enough to satisfy the readers by without having click through the linked content.[13]

 

2.3 How do clickbait generates revenues on website

 

Content marketing is about generating traffic. The most significant consideration for online journalists is if you cannot attract readers’ attention to your website, the opportunities of online success are non-existent. Over the past few years, many small business owners and marketers have been trying to find an easier ways to boost traffic by inducing a readers’ attention through headlines alone since there will be no interest in their stories if a headline is not interesting. By enticing readers to click on a catchy title, there is a high click rate for that website which produces advantages for the site owners.[14]

 

As already indicated, the clickbait is a technique designed by online content publishers for the aim of gaining clicks on their websites. Also, the interesting point is that its function can generate online advertising revenue, particularly at the quality or accuracy expense based on sensationalist or noticeable thumbnail pictures to attract attention through the click. It cannot be denied that advertising is the major contributor factor in overall financial profitability. Internet media websites also rely increasingly on advertisement for gaining more profit. Therefore, a large number of clicks is essential for such websites’ owner to attract advertisers and then to negotiate better deals. Hence, clickbait is aimed to generate revenues by increasing website traffic.[15]

Advertising online is commonly known as ‘Pay-Per-Click’, ‘PPC’, or ‘Click-through payment’ which is the programme whereby the site will be paid when the ad has been clicked.

The site owner agrees to advertise and receive payment only once the user is directly taken to the advertiser’s website. It should be said that this program greatly supports the use of clickbait as strategy.[16]

According to the ‘Pay-Per-Click’ advertising program, the website requires a large volume readers to click on the ads, and this conduces to the ads themselves presenting clickbait headlines. Also, popularity and views of page websites that present clickbait headlines are an important element even if it does not considering pay-per-click advertising model. Further, websites with more viewers can request a higher advertisement rates. In general, clickbait does not advertise products but it is aimed to increase income generated from advertising by enticing readers onto the site and encouraging them to share the story in social media and finally to gain more website traffic.[17] It is therefore to mention that this is why the clickbait website owners intend to increase the webpage views.

It seem to be plain enough that clickbait becomes a serious public debate about the future of the Internet. This is because the widespread on online media contents is not acceptable and has no profitable or beneficial use, as it is an infringement of intellectual property. As the rate of growing numbers of clickbait contents, the newsfeed of the user will be trafficked with these contents rather than the news which the users have subscribed to. In addition, page administrators use the Facebook algorithm to their advantages and only for making money. Which means this is the method to the clickbait generates its revenues on website.[18]  The main point of this issue is that copyrights laws should be taken into consideration, as most of these clickbait contents will be reposted without being accepted by the original creator. These will be analysed solemnly in Chapter 3.

CHAPTER 3

 

LIABILITY FOR CLICKBAIT UNDER FOREIGN COPYRIGHT LAW

 

3.1 Introduction

 

As indicated, the clickbait is a technique designed by online content publishers for the aim of gaining clicks on their websites and only for making money. Nonetheless, most of these contents will be posted without the consent of the original creator.[19] This means that there is always a problem with copyright infringement on the clickbait content posted. In this chapter,the protection of intellectual property relating the liability for clickbait under the United states of America (U.S.) and the United Kingdom (U.K.) are conducted to a comparative study.

This is due to the fact that the Law of Copyright of the U.S. and the Law of

Copyright of the U.K. are model laws for this Act, therefore this dissertation will further explain these two laws. Additionally, it will focus on intellectual property law in the area of copyright, which is the most significant element in the infringement. Whereas the U.S. copyright law provides the provisions to address with this modern kind of infringement and also has the doctrine of fair use, the U.K. law has fair dealing doctrine that is able to determine the clickbait contents infringement.

3.2 Liability for Clickbait under U.S. law

 

3.2.1 The Code of Laws of the United States of America (U.S.C.)

 

The Code of Laws of the United States of America, commonly known as U.S.C, is an official compilation of federal statutory law of the United States.[20] The U.S.C. gives certain exclusive rights to the copyright owner in a work. In addition, these exclusive rights differ from the rights granted to the person who merely owns the copy of the work. Nonetheless, these rights are not without limit as they are particularly limited by the ‘fair use’ and other particular limitations set forth in the Copyright Act.[21]

3.2.1.1 Fair use

The doctrine of Fair Use in the law of the United States system grants the limited use of copyrighted materials without having the permission of the copyright owner for specific purposes such as commentary, news reporting, criticism, research, teaching or scholarship.[22] This is because Fair use is one of the copyright limitations that the U.S. Supreme Court purposes to balance copyright holders’ interests with public interest in the wider use and distribution of creative works[23] by permitting in order to defend against a claim of copyright infringement[24] as The U.S. Supreme Court that has characterized the doctrine of fair use as an affirmative defense, however, in the case Lenz v. Universal Music Corp. (2015) or the case of the dancing baby, the US Court of Appeals stated that fair use was not just a defense against claims of copyright infringement, but it was an expressly authorized right that is regarded as an exception to the exclusive rights granted to the creator of that creative work under copyright law. [25]

Generally, If you create a website and want to post copyrighted contents on the site, you must obtain the copyright owner’s permission as you would for more traditional media, except fair use or another exemption applies.[26] There is just one thing cannot deny is that if your use qualifies as the fair use, it would not be regarded an infringement.[27] It can be said that the doctrine of Fair Use in the U.S.[28] copyright law system is considered as an excellent provision to explain the exceptions of copyright infringement in relation to the clickbait contents.

In this regard, the fair use doctrine[29] can be the appropriate basis for deciding whether the content of the clickbait websites are a copyright infringement by considering to the following four factors.

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

 

In analyzing the first factor in order to justify the use is fair or not, one must illustrate is whether the use advances a socially beneficial activity as those listed in the statue: comment, news reporting, criticism, research, teaching or scholarship. Also, other significant considerations are whether the use in question is commercial or noncommercial and whether that use is transformative.

In recent years, the Courts have traditionally focused on whether the use is transformative by considering a work is of the advancement of knowledge or the progress of art by adding something new and offering a further purpose or different character. As the U.S. Supreme Court decision in the case of Campbell v. Acuff-Rose Music Inc,[30]the Court stated that when the purpose of the use is transformed into something new or ‘transformative’, this would mean it makes the first consideration more likely to favor ‘fair use.’[31] Additionally, the Judges in Blanch v. Koons[32] case also focused on transformativeness to justify the use as fair.

Accordingly the content of the clickbait website, the aim is to solely increase webpage views by using others copyright work as a method earning money. This means that the use is for a commercial purpose. As already pointed out, it is more likely to be found ‘fair use’ when a preexisting work is transformed by adding something new or offering new utility, meaning or message, whereas the content of the clickbait websites do not change to other works or just make a little change which means the Clickbait contents do not constitute a transformation.

Furthermore, as for commercial nature, the content of the clickbait most definitely stand to profit from the exploitation of the copyrighted work without paying the customary price.[33] Therefore, the content of the clickbait would likely fail the first factor of the test.

  1. the nature of the copyrighted work;

Even though the Supreme Court has stated that the availability of the protection of copyright should not rely on the artistic quality or merit of the work, an analysis of fair use assume certain aspects of the work that are relevant, such as whether a work is fictional or non-fictional.[34]

In analyzing the second consideration, in order to prevent the private ownership of a preexisting work that belongs in the public domain, ideas and facts are not protected by copyright law – it is only their specific expression or fixation merits of such protections. The social benefit of freely available information, on the other hand, can weigh against the suitability of copyright for certain fixation. This means that using a more imaginative or highly creative work (the fictional work) such as novel, music, or movie is less likely to favor a fair use than applying a factual work (the non-fictional work) such as news, biography or a technical article. Moreover, the use of published work is more likely to be considered fair.[35]

With regard to the stolen contents from others by clickbait website, it is truly considered as a fictional work that requires the effort to create such work. Therefore, the clickbait headlines are not favor for this factor.

  1. the amount and substantiality of the portion used in relation to the copyrighted work as a whole

 

As for the third consideration, the Courts look at both quality and quantity of the copyright material that has been used in assessing the amount and substantiality of the portion taken in favor of a finding fair use. Generally, there are no clear condition in relation to the percentage of the preexisting work has been used, but the less percentage that is taken relating the whole, the more likely that use will be regarded fair. As the case Religious Technology Center v. Lerma[36], the Court stated that the fair use doctrine is intended to permit the borrowing just of portions of the copyrighted work, not complete works. However, some courts have found that the use of a whole work to be fair accordingly certain circumstances. Also, in other contexts, although the percentage use of a copyrighted work is fairly small, but if the material taken is qualitatively significant, this was determined not to be fair. This is due to the fact that the selection was an essential part of the work.[37] For example, as the case of Harper & Row v. Nation Enterprises[38], the Court stated that the quotation of fewer than 400 words in a news article from the 200,000 words of memoir of President Ford was enough to make the third consideration weighed against fair use. This is because the portion taken relating the copyrighted work was the heart of the work, hence, this use was eventually found not to be fair.

As Clickbait contents always use all of copyrighted work for their contents in order to get users to a particular website. Popularity and views of page websites that present clickbait headlines are an important element because websites with more viewers can request a higher advertisement rates. Therefore, these clickbait websites steal contents from others both writing and photograph work and then the clickbait headlines are not favor for this third factor.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fourth factor should be considered is that the effect that the unlicensed use has had on the ability of the original copyright owner to exploit his original work. The court reviewed whether the allegedly infringing use damages the original or future market of the copyright owner’s preexisting work, for instance, by displacing sales of the original work or the unlicensed use cause substantial damage if it were to become widespread. Moreover, the Courts have held that this factor is the most significant in the fair use analysis.[39]

In assessing this factor with the clickbait website, it can be said that the Internet users generally read the contents just one time, they has never been read twice, resulting in it would completely impact the potential market or the value of the copyright owner’s original work. In addition, copyright holder loss profit from webpage views; on the other hand, the clickbait contents increase an amount of click rate and revenue by doing nothing. Thus, the content of the clickbait is not favor for this factor.

In addition to the above, the Courts would review this analysis and consider that by assessing of all the four factors together to weigh toward a reaching of fair use determination accordingly the purpose of copyright law by promoting the advancement of science and useful arts.[40] It is therefore to mention that the content of the clickbait is not favor for the fair use consideration when assessing all of the factors in the fair use test.[41]

3.2.2 Digital Millennium Copyright Act (DMCA)

 

A copyright holder whose content was stolen from social media may also want to complicate all of the company that control the Clickbait website in the action particularly if the Clickbait creator shared the post with the infringing content on Twitter or Facebook to generate traffic. This point should be taken into consideration in the following paragraph.

The Digital Millennium Copyright Act (DMCA) is legislation enacted by the United States Congress in 1998 that made a significant change to the United States Copyright Act. The DMCA is the beginning part that brings the U.S. copyright law into compliance with the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances Phonograms Treaty. Also, the DMCA improved the legal protections on intellectual property rights on the emergent of new information communication technologies such as the Internet. [42]

The DMCA is divided into five titles.[43] As the Clickbait issue, however, it is regarded to the Title II (the “Online Copyright Infringement Liability Limitation Act ” or “OCILLA”) Title II provides certain legal duties in relation to a safe harbor for online service providers against the copyright infringement liability. Moreover, online service providers must keep to and qualify for certain stipulated safe harbor guidelines and immediately block access to alleged infringing content or remove such content from their system at the time that the copyright holders inform with the notification of an infringement claim to the online service providers. When online service providers remove such content or obstruct an access of the users, they will not have to responsible for the users infringement.[44]

3.3 Liability for Clickbait under English law

 

3.3.1 Copyright, Design and Patents Act 1988

 

The Copyright, Design and Patents Act 1988, commonly known as CDPA, is an officially Act of the Parliament of the United Kingdom.

In order for a work to be protected by the Copyright law, it must fall within accordingly section 1 (1) of the CDPA: literary works, dramatic works, musical works, artistic works, films, sound recordings, broadcasts, and the typographical arrangement of published editions. [45] Additionally, the copyright holder has the rights in accordance with section 16[46]:

“ (1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a) to copy the work

(b) to issue copies of the work to the public

(ba) to rent or lend the work to the public

(c) to perform, show or play the work in public

(d) to communicate the work to the public

(e) to make an adaptation of the work or do any of the above in relation to an adaptation and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.”

In this regard, the copyrighted owner has the exclusive right to do such activities and if anyone does the acts that are restricted by copyright law without the license, it is considered as copyright infringement.

 

3.3.1.1 Fair Dealing

 

Fair Dealing is a doctrine which provide a limitation and exception to the exclusive rights of copyright law to the author who create a copyright work. In other words, Fair Dealing is a set of possible defences against an act for infringement of such exclusive rights of the copyright law. If sued for an infringement, one cannot deny to rely on is Fair Dealing that is regarded as a defence in courts. Further, Fair Dealing differ from the United States of Fair Use in case that the Fair Dealing doctrine cannot apply to any action that does not fall within the categories, even though courts of common law in certain jurisdictions are less stringent than others. In practice, nonetheless, such courts might decide by considering actions with a commercial character that might be presumed to fall within one of the categories, were infringements of copyright law. From this point, the doctrine of Fair Dealing is not as flexible as the United States concept of Fair Use.[47]

Particularly, Fair Dealing is an exception to the purposes of non-commercial research or study, criticism or review, or for the reporting of current events and the illustration for instruction, quotation, parody, caricature or pastiche.[48]

 

  1. Non- commercial research and private study

According to section 29(1) of the CDPA 1988, Fair Dealing is a legal defence when dealing against copyright infringement for the aim of non-commercial research and private study. This means that you are permitted to copy the limited extracts of works in the event that the use is non-commercial research or private study but you must be genuinely studying. However, if you copy the whole work, this would not typically be regarded as fair dealing.[49] The rational of this purpose is that research and study is an important incentive to produce new works and inspire innovation. Moreover, the nature of non-commercial research does not affect on the rewards that the original author is received.[50] Further, if your use is qualified as for non-commercial research, then you must ensure that it contains sufficient acknowledgement for the original copyright owner.[51]

  1. Copies for text and data analysis for non-commercial research

It is certainly true that text and data mining (or sometimes referred to as text and data analysis) is the use of automated analytical techniques to analyze the large amount of data for useful information. From this point, it generally requires copying the copyrighted work to be analyzed. In the past, researchers used text and data mining in their research can cause the risk of infringing copyright except they had permission from the copyright holder.[52]

Further, an exception to the exclusive rights of copyright law exists that permits researchers to copy of any copyrighted work for the aim of computational analysis in the condition that they have the right to read such work. Also, it only allows making of copies for the aim of text and data analysis for non-commercial research and researchers will have to buy a subscription to access such work. It is therefor to mention that this automated analytical techniques employed for the purpose of text and data mining are consistently evolving in consequence of widespread access to large networked computing power and increasing digital data sets.[53]

  1. Criticism, review, quotation and news reporting

 

An exception of fair dealing is valid if the copyrighted work is being copied for criticism and review. Further, after 2014, the copyright law permits the usage of quotation more broadly. By doing so, the infringer must be able to illustrate that usage was for criticism, review or quotation. An important thing is that when quoting a work for this purpose, you can review not only the particulars and merit of the work but also its social or moral implications. Moreover, the material used was made available to the public by means of which the issuing of copies, exhibiting or performing a copyrighted material, lending copies or communicating it to the public. On the other hand, you cannot use a material that has just been made available confidentially. Also, it does not infringe in any copyrighted work that is accompanied by a sufficient acknowledgment.[54]

In addition, the purpose of reporting current news, with sufficient acknowledgement, is valid for an exception to copyright law. However, photographs are excluded from this exception. This is because in order to ‘preserve the full value of holding a unique visual record of some person or event.’[55]

 

  1. Caricature, parody or pastiche

 

Section 30A of the CDPA 1988 provides for a doctrine of fair dealing as a defence against an action for infringement was for the purpose of caricature, parody or pastiche.[56] It can be said that there is no case law to give guidance or interpret this defence, however, the Intellectual Property Office (IPO) suggests that by providing a helpful definition of what constitutes caricature, parody or pastiche, and what does not, that is a ‘caricature’ is something that describes a content in a simple or exaggerated manner, whether for a political or entertainment purposes and whether it is insulting or complimentary, a ‘parody’ is regarded as an imitation of a style of a particular artist or writer with humorous or satirical effect, and that a ‘pastiche’ is an element that consists of selections from different sources or one that imitates the manner of another artist or period.[57]

Particularly, this particular provision is intended to permit creators to refer to other copyrighted works within a work they are making. Additionally, it will only allow the use of works for the purposes of parody, pastiche and caricature to the extent of fair dealing and that permits creator only to make use of a moderate and limited amount of other work.[58]

Overview

In this regard, ‘Fair Use’ and ‘Fair Dealing’ are concepts pertaining to the rights of users under copyright law. However, it is important to understand that ‘Fair Use’ and ‘Fair Dealing’ are not synonymous terms because their meaning and scope are determined by different legal aspects. It is extremely challenging to conclude the divergent and shared underpinnings of ‘Fair Use’ and ‘Fair Dealing’ succinctly, based on complexity and controversy nature. Therefore, the following comparison is intended only to provide an overview of some of the fundamental similarities and differences between ‘Fair Use’ and ‘Fair Dealing’.

As already pointed out, ‘Fair use’ is an exception on exclusive rights in works of authorship granted accordingly United States copyright law. As Title 17 of the U.S. Code points out that the provisions of ‘Fair Use’ in any copyrighted materials is not considered as an infringement of copyright. It also provides an open-ended list of purposes that is qualified for ‘Fair Use’ by considering to the four factors. ‘Fair dealing’, on the other hand, is a limitation to copyright infringement defined in the copyright laws of the United Kingdom. These copyright acts state that ‘Fair Dealing’ is not infringing if it is qualified for purpose specifically set forth in the law which means if a work is copied for the purposes other than of the ‘Fair Dealing’ purposes provided, that copying may not be considered as a ‘Fair Dealing’ regardless of the objective that may be beneficial or meritorious of the copier.

Another point of divergence is that the availability of legal guidance regarding the fairness of a use or dealing that should be assessed. As already indicated, the provisions on fair dealing generally lack legal definitions and the regulations specified on how fairness is to be defined, so the appropriate approach of evaluating the fairness of dealings with protected materials is a matter for the courts to determine. On the contrary, the provision of ‘Fair Use’ in the United States copyright law defines four factors that must be involved in determining a fairness that is 1) the purpose and character of that use, 2) the nature of the copyrighted material, 3) the amount and substantiality of that portion used in the work and 4) the impact of the usage on the potential market or the value of the work. In other words, Fair dealing doctrine is much more restricted than the American concept of Fair Use since it merely applies in strictly prescribed situations. Hence, besides those situations there would be no legal defense against the copyright infringement at all. [59]

CHAPTER 4

 

LIABILITY FOR CLICKBAIT UNDER THAI COPYRIGHT LAW

 

4.1 Introduction

In order to acquire copyright protection under Copyright law in Thailand that is Thai Copyright Act B.E. 2537(1994), the work must be in a specific category stipulated by the law as section 6 provides the types of works which are copyrightable which are literary works, dramatic works, artistic works, musical works, audiovisual works, cinematographic works, sound recording, sound and video broadcasting work.[60] Furthermore, the important thing is that these categories of work are protected, regardless of the mode of form in which such works are expressed.

The point is that when considering the content of the clickbait, it generally be news, story or pictures. So, this dissertation will emphasized on literary works[61] and artistic works.[62] According to the former, writings which is literary works, whether written or printed on the digital form, they are protected under the Thai Copyright Act B.E. 2537(1994). While the latter is the photographic work which is a type of artistic work. Unlike traditional film cameras, digital cameras capture and record images of the world using digital technology. Moreover, they store photos not as forms of light and darkness but as long strings of numbers. So, there are many advantages, but one thing is that once a photograph is stored in numeric form, it make easier to do all kinds of things with it such as uploading the images onto the websites, send email to others and so on since your photos are stored digitally and all other digital devices – everything from computers to printers that use digital technology as well. In other words, when scanners are available, the reproduction of ‘photographic work’ is simplified by scanning into digital files.[63]

It can be said that these digital file is protected under the Thai Copyright Act B.E. 2537(1994). This is because the photographic work term includes the recording of images by other methods or devices, not only by the case that pictures created by the use of recording devices that allow the light to pass through the lens to a photographic film or a mirror, and developed by a specific formula of the developing fluid or any process which creates an image.[64]From this point, both writings (literary works) and photographic work (artistic) in the digital form are protected under the Thai Act and may be pirated by a tactic called ‘clickbait’.

4.2 Works not covered by the Thai Copyright Act B.E. 2537 (A.D.1994)

It should be stressed that not all works be copyrightable under this Act when determining section 7.[65]

According to subsection 1 of the section 7, it stated that the works which concerned with the clickbait contents. The news of the day and the facts having the character of mere information are not protected by the Thai Copyright Act B.E. 2537(1994). This is because Thai people have multiple means and choices to receive news and information by the free flow of information doctrine which means Thai residents should have rights to access news and information. Furthermore, the news and the facts are occurred by themselves and no one made them. It can be implied that no one should have exclusive rights in the news and the facts.

According to the clickbait contents, they may infringe copyright works to the copyright owner if their contents included not only the news and the facts accordingly section 7, but also other parts of the news. This is due to the fact that the news and the facts in the created works, for example the literary work, the artistic and scientific field, are deemed as copyrightable works that are protected under the Thai Copyright Act B.E. 2537(1994)[66]. Hence, other parts in news reporting that are criticized or reviewed are protected. If these parts are reproduced and adapted without permission from the owner of the copyright works, one must be liable.

4.3 The rights granted by the Thai Copyright Act B.E. 2537(A.D.1994)

 

If you own the copyrighted work, you have exclusive right over the uses of that work accordingly Section 15.[67] From this point, these exclusive rights fall into two type: economic rights and moral rights.

Typically, copyrights can be divided into ‘Economic copyright’ and ‘Moral right.’ However, it will focus only economic right in relation to the clickbait contents. As the economic right, it is regarded as the protection of economic value of a copyright work. Economic rights are divided into the rights corresponding to the different use forms of copyright works. There are cases in clickbait website where more than one rights type is involved compositely. Indeed, clickbait contents make reproduction, adaptation and communication to the public.

As already pointed out, the Internet allows information to be widely diffused and readily accessed at an unbelievably fast rate, with very low expense as well as to directly connect the end user end the source without the intermediation. These flexibilities of digital media make people to easily copy, edit, and change in time and space.

It should be said that Thai clickbait contents frequently translated the news or article from foreign language to Thai language and then posted on website which is regarded as adaptation. Photos or images on those news and article copied or made a little change and pasted them which is regarded as reproduction. Also, the communication to the public right that communicate the copyrighted work to the public by electronic transmission which means this would include putting that news or article with Thai language or photos or images on those news and article copied or made a little change on the internet.[68]

Therefore, copyright would normally be infringed when someone completes reproduction, adaptation and communication to the public that restricted listed without permission in the section 27 of the Thai Copyright Act B.E. 2537 (A.D.1994).[69]

 

4.4 Exceptions to infringement of copyright under the Thai Copyright Act B.E. 2537 (A.D.1994)

 

The copyright law grants an exclusive right to the copyright owner, but it is impossible to allow the copyright holder to enjoy the exclusive right in all situations. Furthermore, to balance the interest between the copyright holder and the public, the United States have developed the doctrine of Fair Use, permitting user to make reasonable use of copyrighted work without permission. It should be said that Fair Use in the U.S. becomes one of the most significant defenses of copyright infringement. At the meantime, Thailand has developed the principle of Fair Use as well. It is considered as the exception of copyright infringement. [70]

The Thai Copyright Act B.E. 2537 (A.D.1994) provides the exceptions to infringement of copyright in Section 32.[71] In this regard, the paragraph one of the Section 32 provides the principal principle which will not infringe copyright, although person act against the copyrighted work that has the exclusive rights to the copyright owner accordingly Section 15 without permission if

(a) An act does not conflict with a normal exploitation of that copyrighted work to the copyright owner and

(b) An act does not unreasonably prejudice to the legitimate interests of the owner of copyright.[72]

In this regard, the two conditions in enacting the exceptions as mentioned above are in comply with Article 13 of TRIPs, following Article 9(2) of the Berne Convention. Since the Fair Use principle is enacted broadly in The Thai Copyright Act B.E. 2537 (A.D.1994), this led to a consequence that the problem in interpretation. This is because it does not have the criterion to make sure whether an act conflict with a normal exploitation of the copyrighted work to the copyright owner and whether an act has unreasonably prejudice to the legitimate interests of the owner of copyright. Significantly, it is still unclear whether the two factors in paragraph 1 of Section 32 can be applied as a general exception like fair use. Therefore, the interpretation of exception in the Thai copyright law must consider the fact in each circumstance.[73]

There is a lack of clarity regarding flexibility allowed in enacting exceptions. The decision of the Court in Thailand in the past has made this aspect unclear. The principle of the U.S. Fair use and the U.K. fair dealing are the critical component of a well-balanced copyright system by allowing for the protections, in particular economic rights, to be given to creators to be balanced by exceptions of those rights in certain cases to provide services for the public interest.[74] According to the U.S. copyright law, the four factors of Fair Use principle are provided clearly in 17 of U.S.C. § 107 for adjudicating the fair use defense.[75] This means that the four factors in the U.S. copyright law needed to be carefully considered as ‘Fair Use’. From this point, it should be highlighted that comparing with the doctrine of Fair Use, the two conditions of exceptions to infringement of copyright under Section 32 paragraph 1 of the Thai Copyright Act B.E. 2537 (A.D.1994) is enacted ambiguously which differ from the general exception of Fair Use doctrine.[76]

However, it should be said that the clickbait content has no any condition which be the action when considering exception to infringement of copyright accordingly Section 32. This is because the aim of clickbait website is to increase income generated from advertising by enticing readers onto the site and encouraging them to share the story in social media and finally to gain more website traffic, but many of these sites steal contents from others.[77] This is a way that the use of the work of clickbait content conflict or compete with the normal exploitation of that copyrighted work to the copyright owner, particularly in the commercia[78]and does not unreasonably prejudice to the legitimate interests of that author because the website that the clickbait content steal still intend or wish to increase their webpage views.

Furthermore, it is not necessary to determine that whether the action is under (1)-(8) in paragraph 2 of this section or not since the paragraph 2 is subject to the provision stated in the first paragraph.[79] It can be concluded that the exceptions to infringement of copyright will not apply to the Clickbait content.

4.5 Safe harbor for Internet service providers

 

Online copyright infringement is a very widespread problem. Infringing contents that are uploaded through the Internet in one jurisdiction can be accessed from anywhere in the world. The concern of this issue is the fact that Internet Service Providers or ISPs host and transmit a large amounts of data, and the sheer amount makes it not possible for Internet Service Providers to control or monitor all of the uploaded content. Thus, it would be difficult for Internet Service Providers to prevent the infringement of copyright completely.[80]

Typically, the Safe Harbor for Internet Service Providers (ISPs) is a new legal provision which added to the Thai Copyright Act B.E.2537 (A.D.1994) by the Copyright Act (No.2) B.E.2558 (A.D. 2015). The amendments present several provisions that modernize the law for the information age or digital age.[81] It is important that the amended Copyright Act (No.2) B.E.2558 (A.D. 2015) regulates the liability of Internet Service Providers for the infringement of copyright and it helps copyright owners uphold their rights online by providing in By Section 32/3.[82]

4.5.1 Background to Section 32/3

During the process of drafting Section 32/3, since the concerns about the probable risk of abuse by the exploitative copyright holder, the Office of the Council of State pointed out to the Courts as the impartial gatekeepers to inspect all takedown requests for compliance to Legal requirements.[83] The point is that this step was intended to prevent copyright holders from excessively enforcing their rights against the non-infringing content.

This misuse of the procedures of notice and takedown has occurred in other countries such as the U.S. through the usage of automated notices programs which usually request the removal of apparently non-infringing content. In the meantime, there has been argued from many critics that the courts unnecessarily slow down and complicate the notice and takedown procedure, and make Internet Service Providers less likely to voluntarily take down the infringing contents without the court orders.[84]

It should be concluded that Section 32/3 is intended to simultaneously limit the ISPs liability and define the procedure for website owners to have infringing contents removed from the Internet, which similar to the procedures of the safe harbor and notice and takedown being used in the U.S. Nonetheless, whereas the U.S. does not require the court intervention for its procedure, Section 32/3 in Thailand does.

4.5.2 Scope of Section 32/3

As already described, the functions of Section 32/3 are to help copyright owners uphold their rights online by allowing for the preliminary injunctions to remove infringing works from the Internet, whereas in the meantime regulating the liability of Internet Service Providers for the infringement of copyright by providing the exception from liability for Internet Service Providers.[85]

With regards to this section, the copyright holder must file a motion to the court by requesting an injunction against the infringing contents. The motion, moreover, must clearly mention any information in relation to the Internet Service Providers, claims of infringement and details of the investigative procedure that will bring about to the finding of the evidence of the infringement and then the infringement, including the possible damages and other related factors.

Copyright holders, however, have had some points in getting preliminary injunctions under the Section 32/3. As many of the unsuccessful cases, Courts rejected the request those injunctions since according to the Court’s opinion, copyright owners failed to provide adequate information.[86]

The next step is that if all necessary information is provided and the court considers its necessity, so the court may order the Internet Service Providers to remove the infringing content by specifying the time period within which the ISPs must conform to the court order. After that, the copyright holder must initiate a legal action against the infringer within a specified period of time.[87] Moreover, if the Internet service providers are not the one who control or order infringing activity to be carried out in computer system, they will be exempt from liability to infringement of copyright when compliancy with the court order, and they cannot be held liable for the damage incurred by their act carried out under the order.[88]

4.5.3 The obstruction of enforcement by using section 32/3

It has been observed that Courts have attempted with implementing Section 32/3. Moreover, the takedown orders are practical with compliant Internet Service Providers under the Thai court jurisdiction; nonetheless, takedown orders targeting foreign Internet Service Providers with servers hosted outside of Thailand are likely to be ignored and are frequently unenforceable because this section does not provide for website blocking. This means that the Thai courts cannot provide remedies to the website owners for most pirated websites hosted on foreign servers.[89] Hence, some copyright holders have turned their point to other enforcement alternatives. Furthermore, some Thai Internet Service Providers currently expect to acquire the court order before they will conform to a takedown request based on the groundless fear that they may lose their liability exception given by the Act if they do otherwise. This result has no foundation in the Copyright Act, but it continues nevertheless.[90]

Additionally, this section requires the plaintiff to follow up the request for preliminary injunction with a lawsuit; however, it does not determine the action type to be taken, whether criminal, civil or private. This makes the courts and plaintiffs uncertainty in pursuing a claim under section 32/3. In addition, after the infringing content has been removed, copyright holders may think that there is no need to file a lawsuit, it may be difficult to bring one – in a civil action, or damages may be too low to justify with an anonymous defendant, and the prescription period of the three-month is easily exceeded in a criminal action.[91] From this point, the plaintiff may require the court assistance to subpoena an anonymous infringer identity from the hosting Internet service providers. However, such a remedy is not provided in the statute. Eventually, even though Section 32/3 is in Part 6 of the Thai Copyright Act which provides exceptions of copyright infringement, it seems like a litigation process. Further, if the intention of Section 32/3 is to present that the Internet service providers are not liable for unknowingly hosting pirating content on their services, and then combining it with the requirement of litigation does not further those ends.[92]

4.5.4 The outlook of Section 32/3

As Clickbait website is a copyright infringement, there is Section 32/3 of the Thai Copyright Act that creates a safe harbor for Internet service providers (ISPs) and deal with the digital online infringed contents. According to the point that this section helps copyright owners uphold their rights online by allowing for the preliminary injunctions to remove infringing works from the Internet. One can be argued is that this provision might not provide completely the ability to cope with infringing Click-bait contents and copyright infringement offences. With regards to Thailand’s amended copyright Act, it may request the court to order Internet service providers to remove clickbait content from their services. The U.S., however, allows copyright holders to notify Internet service providers of infringement directly without going to the Courts.[93] Hence, Thailand needs a quick way to cease Clickbait-content and its nature differs from other forms of copyright infringement. The process of making clickbait content is just copy and paste the contents into it that normally having a vague meaning but interesting enough to gather many readers to click on the content in that period.[94] For instance, the news relating the death of celebrity which draw the attention of the users and raise the emotion from this sensational headline, but this type of contents are remained popular for a few days, then fading away. Which means this situation is quickly happened and gone. It is therefore to mention that submitting a request regarding injunction to the court may delay the take down process.

Furthermore, this section has created a safe harbor provision for Internet service providers by limiting their liability for infringing contents posted by third parties to their services. In this situation, however, the injunctive relief has eluded the content owners. So, until this matter is determined, to obtain trustworthy outcomes content owners should extend the scope of enforcement strategies and not limit to section 32/3 alone. Also, the use of traditional investigative methods may be proficient in locating and identifying the anonymous infringers.[95]


[1] Ashuta Bhattarai, ‘You won’t believe how these 9 shocking clickbaits work!

(number 8 is a killer)’ (5 Jan 2017), available at < https://medium.com/zerone-magazine/you-wont-believe-how-these-9-shocking-clickbaits-work-number-8-is-a-killer-4cb2ceded8b6 > accessed 29 June 2018

[2] Nash Riggins ‘What is Clickbait and Why should you be careful using it to promote your business’ (July 2017) available at < https://smallbiztrends.com/2017/07/what-is-clickbait.html > accessed 29 June 2018

[3] FindLaw, ‘Is it Legal to copy Content from a Website’, (2018,Thomson Reuters), available at < https://smallbusiness.findlaw.com/business-operations/is-it-ok-to-copy-material-from-a-website.html > accessed 29 June 2018

[4] Statista, ‘Leading social networks worldwide as of April 2018, ranked by number of active users(in millions)’, available at < https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/ > accessed 29 June 2018

[5] Henry Elliss, ‘The dirty secrets of clickbait. This post will blow your mind!’, (2018, Econsultancy.com Limited), available at < https://econsultancy.com/blog/64399-the-dirty-secrets-of-clickbait-this-post-will-blow-your-mind > accessed 30 June 2018

[6] Ravi Somaiya, ‘Facebook takes steps against ‘Click bait’ articles’ (August 25, 2014), The new york times, available at < https://www.nytimes.com/2014/08/26/business/media/facebook-takes-steps-against-click-bait-articles.html > accessed 30 June 2018

[7] Christine Lagorio-Chafkin, ‘Clickbait Bites. Downworthy is actually doing something about it’, (Jan 27, 2014), available at < https://www.inc.com/christine-lagorio/clickbait-destroyer-downworthy.html > accessed 2 July 2018

[8] Will Oremus, ‘Area humor site discovers Clickbait’ (June 12,2014), available at < http://www.slate.com/articles/technology/technology/2014/06/clickhole_the_onion_s_new_site_is_more_than_a_buzzfeed_parody.html > accessed 2 July 2018

[9] Andrew Leonard, ‘Why Mark Zuckerberg’s war on click bait proves we are pawns of social media’ (August 25, 2014), salon, available at < https://www.salon.com/2014/08/25/why_mark_zuckerbergs_war_on_clickbait_proves_we_are_all_pawns_of_social_media/> accessed 2 July 2018

[10] WordStream:Online Advertising Made Easy, ‘Pay-Per-Click Marketing: Using PPC to build your business’, available at < https://www.wordstream.com/pay-per-click > accessed 2 July 2018

[11] The free dictionary by Farlex, clickbait, available at < http://www.thefreedictionary.com/clickbait > accessed 2 July 2018

[12]Katy Waldman, ‘Mind the curiosity gap: How can Upworthy be nable and right when its clickbait headlines feel so wrong?’ National Post, (May 23, 2014) , available at < https://nationalpost.com/news/mind-the-curiosity-gap-how-can-upworthy-be-noble-and-right-when-its-clickbait-headlines-feel-so-wrong > accessed 29 June 2018

 

[13] Katy Waldman (n12)

[14] Nash Riggins (n2)

[15] Nash Riggins (n2)

[16] WordStream:Online Advertising Made Easy, ‘Pay-Per-Click Marketing: Using PPC to build your business’, available at < https://www.wordstream.com/pay-per-click > accessed 2 July 2018

[17] WordStream:Online Advertising Made Easy (n16)

[18] Ravi Somaiya, ‘Facebook takes steps against ‘Click bait’ articles’ (August 25, 2014), The new york times, available at < https://www.nytimes.com/2014/08/26/business/media/facebook-takes-steps-against-click-bait-articles.html > accessed 2 July 2018

[19] See Chapter 1,2

[20] Office of the Law Revision Counsel, ‘The United States Code’, available at < http://uscode.house.gov/download/download.shtml > accessed 3 July 2018

[21] Giusepina D’Agostino, ‘Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair and U.S. Fair Use’, (McGill Law Journal Vol. 53), available at < https://www.iposgoode.ca/wp-content/uploads/2008/11/g-dagostino-healing-fair-dealing-mcgill-lj-2008.pdf > accessed 4 July 2018

[22] Giusepina D’Agostino (n21)

[23] See Eldred v. Ashcroft, 537 U.S. 186, 219 (2003); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).

[24] Patricia Aufderheide and Peter Jaszi, ‘Reclaiming Fair Use: How to Put Balance Back in Copyright’. University of Chicago Press (2011) at p 10-11.

[25] Lenz v. Universal Music Corp., 801 F.3d 1126, 1133 (9th Cir. 2015).

[26] Office of the General Counsel Harvard University, ‘Copyright and fair use’, available at < https://ogc.harvard.edu/pages/copyright-and-fair-use > accessed 4 July 2018

[27] Rich Stim, ‘What Is Fair Use?’, available at < https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ > accessed 4 July 2018

[28] 17 of U.S.C. § 107

[29] 17 of U.S.C. § 107 states that

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

[30] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)

[31] Pamela Samuelson, ‘Unbundling Fair Uses’, available at < http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_77/Samuelson2_Vol_77_Apr.pdf > accessed 4 July 2018

[32] Blanch v. Koons 467 F.3d 244 (2d Cir. 2006)

[33] Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).

[34] Warner Bros. and J. K. Rowling v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008)

[35] Giusepina D’Agostino

[36] Religious Technology Center v. Lerma, 40 U.S.P.Q.2d 1569 (E.D. Va., 1996)

[37] Copyright.gov, ‘More information on Fair use’ (July 2018), available at < https://www.copyright.gov/fair-use/more-info.html > accessed 4 July 2018

[38] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)

[39] Bitlaw, ‘Fair use in copyright law’, available at < https://www.bitlaw.com/copyright/fair_use.html#fair_use > accessed 4 July 2018

[40] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

[41] Office of the General Counsel Harvard University (n23)

[42] Executive Summary Digital Millennium Copyright Act Section 104 Report, available at < https://www.copyright.gov/reports/studies/dmca/dmca_executive.html > accessed 5 July 2018

[43] U.S. Copyright Office Summary, ‘The Digital Millennium Copyright Act of 1998’,

(Dec 1998), available at < https://www.copyright.gov/legislation/dmca.pdf > accessed 6 July 2018

[44] U.S. Copyright Office Summary (n39)

[45] English Copyright, Design and Patents Act 1988, sec. 1(1).

[46] Section 16 of the Copyright, Design and Patents Act 1988,

[47] Jonathan Band and Jonathan Gerafi, ‘The Fair Use/Fair Dealing Handbook’ (policybandwidth, March 2013), available at < http://infojustice.org/wp-content/uploads/2013/03/band-and-gerafi-2013.pdf > accessed 6 July 2018

[48] Sections 29 and 30 of the Copyright, Design and Patents Act 1988

[49] Intellectual Property Office, ‘Guidance Exceptions to Copyright’, available at < https://www.gov.uk/guidance/exceptions-to-copyright > accessed 6 July 2018

[50] Lionel Bently and Brad Sherman, ‘Intellectual Property Law’ (4th ed.)  Oxford University Press (2014)

[51] Intellectual Property Office (n46)

[52] Intellectual Property Office, ‘Exceptions to copyright: Research’, (October 2014), available at < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/375954/Research.pdf > accessed 6 July 2018

[53] Dr Eleonora Rosati, ‘The Exception for Text and Data Mining (TDM) in the Proposed Directive on Copyright in the Digital Single Market – Technical Aspects’, available at < http://www.europarl.europa.eu/RegData/etudes/BRIE/2018/604942/IPOL_BRI(2018)604942_EN.pdf > accessed 6 July 2018

[54] ‘Fair Dealing Guidelines’, (Chanel Four Television Corporation 2018), available at < https://www.channel4.com/producers-handbook/c4-guidelines/fair-dealing-guidelines > accessed 7 July 2018

[55] William Cornish, David Llewelyn and Tanya Aplin, ‘Intellectual Property: Patents, Copyright, Trademarks and Allied Rights’ (2010, 7th ed.,), Sweet & Maxwell.

[56] Sections 30A of the Copyright, Design and Patents Act 1988

[57] Fair Dealing Guidelines (n51)

[58] Fair Dealing Guidelines (n51)

[59] ‘Fair Dealing week’, available at < https://www.uleth.ca/lib/copyright/content/fair_dealing_week/fair_dealing_vs_fair_use.asp > accessed 10 July 2018

[60] Section 6 of COPYRIGHT ACT B.E. 2537 (1994)

[61] “Literary works” means any kind of literary work such as books, pamphlets, writings, printed matter, lectures, sermons, addresses, speeches, and shall include computer programs

[62] “Artistic work” means a work which has one or more of the following characteristics:

(5) A photographic work, namely, a picture created by the use of image recording devices which allow the light to pass through the lens to a photographic film or a mirror, and developed by a specific formula of the developing fluid or any process which creates an image, or a recording of an image by other devices or methods.

[63] Chris Woodford, ‘Digital Cameras’, (June 13, 2018), available at < https://www.explainthatstuff.com/digitalcameras.html > accessed 28 July 2018

[64] Section 6 of COPYRIGHT ACT B.E. 2537 (1994)

[65] Section 7 The followings are not deemed copyright work by virtue of this Act :

(1) news of the day and facts having the character of mere information which is not a work in literary, scientific or artistic domain,

(2) constitution and legislations,

(3) regulations, by-laws, notifications, orders, explanations and official correspondence of the Ministries, Departments or any other government or local units,

(4) judicial decisions, orders, decisions and official reports,

(5) translation and collection of those in (1) to (4) made by the Ministries, Departments or any other government or local units.

[66] The Thai Copyright Act B.E. 2537(A.D.1994)

[67] Section 15 Subject to Section 9, Section 10 and Section 14, the owner of copyright has the exclusive rights of :-

(1) reproduction or adaptation,

(2) communication to public,

(3) letting of the original or the copies of a computer program, an audiovisual

work, a cinematographic work and sound recordings,

(4) giving benefits accruing from the copyright to other persons,

(5) licensing the rights mentioned in (1), (2) or (3) with or without conditions provided that the said conditions shall not unfairly restrict the competition. Whether the conditions as mentioned in sub-section (5) of the paragraph one are unfair restrictions of the competition or not shall be considered in accordance with the rules, methods and conditions set forth in the Ministerial Regulation.

[68] GOV.UK, ‘Guidance: The rights granted by copyright’, available at < https://www.gov.uk/guidance/the-rights-granted-by-copyright > accessed 28 July 2018

[69] Section 27 of the Thai Copyright Act B.E. 2537(1994).

[70] Chutima Ekthammasut, ‘The likely way for the interpretation of Section 32 Paragraph 1 of the Copyright Act B.E 2537 (A.D. 1994)’, available at < http://www.aulibrary.au.edu/multim1/ABAC_Pub/Rapee-Journal-Law/v2-n1-23-2552.pdf > accessed 29 July 2018

[71] Section 32 of the Thai Copyright Act B.E. 2537(1994).

Any act against a copyright work of another person under this Act, which does not conflict with a normal exploitation of the copyright work by the copyright owner and does not unreasonably prejudice the legitimate interests of the author, shall not be deemed and an infringement of copyright.

Subject to the provision in the first paragraph, any act against a copyright work referred to in the first paragraph shall not be deemed an infringement of copyright provided that such act is any of the following:

(1) research or study of the work provided that such act is not for profit;

(2) use for personal benefit or for the benefit of the user and his family members or close relatives;

(3) criticism, review or recommendation of the work, accompanied by an acknowledgement of the ownership of copyright in such work;

(4) news reporting through mass communication, accompanied by an acknowledgement of the ownership of copyright in such work;

(5) reproduction, adaptation, exhibition or presentation for the benefit of judicial proceedings or proceedings by authorised officials, or reporting the result of such proceedings;

(6) reproduction, adaptation, exhibition or presentation by a teacher for the benefit of his teaching provided that such act is not for profit;

(7) reproduction, adaptation of part of the work or abridgement or making a summary by a teacher or an educational institution for distributing or selling to students in class or in an educational institution provided that such act is not for profit;

(8) use of the work as part of questions and answers in an examination.”

[72] Section 32 of the Thai Copyright Act B.E. 2537 (A.D.1994).

[73] Chutima Ekthammasut (n67)

[74] Robin Ramcharan, ‘The Need for a Balanced Approach to Copyright Laws in Thailand’, (International Journal of Cultural and Creative Industries)

[75] 17 of U.S.C. § 107

[76] Chutima Ekthammasut (n67)

[77] See Chapter 1.

[78] Bangkok Post, ‘Using copyrighted materials from the internet’, (August 2012), available at < https://www.tilleke.com/sites/default/files/2012_using_copyrighted_materials.pdf > accessed 2 August 2018

[79] Section 32 of the Thai Copyright Act B.E. 2537 (A.D.1994).

[80] Suebsiri Taweepon and Edoardo E. Artese, ‘Removing Infringing Content on ISPs Hosted in Thailand and the European Union’, (Tilleke & Gibbins, July 2016), available at < https://www.tilleke.com/sites/default/files/2016_Jul_Removing_%20Infringing_Content_ISPs.pdf > accessed 2 August 2018

[81] WIPO, ‘Thailand: Copyright Act (No.2) B.E. 2558 (A.D.2015)’

[82] Section 32/3 of the Thai Copyright Act B.E. 2537 (A.D.1994).

‘In the case where there is reliable evidence showing that there is a copyright infringement in the computer system of a service provider, a copyright owner may submit a petition requesting the court to order the service provider to cease such copyright infringement.

For the purposes of this section, a service provider means:

(1) a person who provides to another person a service enabling the service recipient to access the internet, or to connect with other persons by other means via a computer system, regardless of whether the service is provided under the name of the service provider or under the name, or for the benefits, of another person;

(2) a person who provides a service to store a database for another person’s benefits.

The petition under paragraph one shall have explicit details about the information, the evidence and the relief sought, as follows:

(1) name and address of the service provider;

(2) the copyrighted work that is allegedly infringed;

(3) the allegedly infringing work;

(4) the detecting process, date and time when the act was discovered, as well as the act committed or circumstances, including evidence relating to the copyright infringement;

(5) damage that may occur from the alleged copyright infringement;

(6) the request to order the service provider to remove the infringing work from service provider’s computer system or to suppress copyright infringements by other means.

Upon receipt of the petition under paragraph one, the court shall hold an examination. If the court holds that the petition is complete as specified under paragraph three, and, if there are necessary grounds for the court to approve the petition, the court shall order the service provider to cease said infringement or remove the alleged infringing work from the computer system of the service provider for the period of time prescribed by the court. The court’s order shall be enforced against the service provider immediately, and shall be notified to the service provider without delay. In this regard, the copyright owner shall file legal proceedings against an infringer of copyright within the period of time ordered by the court to cease the alleged infringement or remove the alleged infringing copy from the computer system.

In the case where the service provider is not a person controlling, initiating or ordering alleged infringement in the computer system of the service provider and such service provider has proceeded the court’s order as prescribed under paragraph four, the service provider shall not be liable for alleged infringement occurring prior to the issuance of the court order and after the expiry of the court’s order.

The service provider shall not be liable for any damage arising from implementing the court’s order under paragraph four.’

[83] Suebsiri Taweepon and Alec Wheatley, ‘Copyright Act Amendments: Combating Online Infringement – Obstacles and Prospects’, ( Tilleke & Gibbins International Ltd, 2016), available at < https://www.tilleke.com/sites/default/files/2016_IC_Nov_Combating%20online%20Infringement.pdf > accessed 3 August 2018

[84] Suebsiri Taweepon and Alec Wheatley (n80)

[85] Suebsiri Taweepon and Ploynapa Julagasigorn, ‘Thailand’s New Law for Combating Online IP Infringement’, (Volume 31, Number 4, April 2017), available at < https://www.tilleke.com/sites/default/files/2017_Apr_Thailands_New_Law_Combating_Online_IP_Infringement.pdf > accessed 5 August 2018

[86] Suebsiri Taweepon and Ploynapa Julagasigorn (n82)

[87] Suebsiri Taweepon and Ploynapa Julagasigorn (n82)

[88] Nandana Indananda and Suebsiri Taweepon, ‘Thai Copyright Act Amendments: Updating the Law for the digital Age’, (Tilleke & Gibbins, Vol.6 No.1 February 2015), available at < https://www.tilleke.com/sites/default/files/2015_Mar_Thai_Copyright_Act_Amendments.pdf > accessed 6 August 2018

[89] Suebsiri Taweepon and Alec Wheatley (n80)

[90] Suebsiri Taweepon and Alec Wheatley (n80)

[91] Suebsiri Taweepon and Alec Wheatley (n80)

[92] Suebsiri Taweepon and Alec Wheatley (n80)

[93] See Chapter 3.

[94] See Chapter 1.

[95] Suebsiri Taweepon and Alec Wheatley (n80)



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