Next up in our South-East Asia IPR Basics series is Thailand, the second largest economy in South-East Asia after Indonesia, and one of the core ‘anchor’ economies.

This article provides a quick background to Thai-EU relations for SMEs and covers all the core aspects of copyright law in the country. Be sure to check back in the coming weeks as well when we’ll be discussing Trade Marks, GIs, Patents, Design Rights, and Customs Controls in the region.

If we’ve peaked your interest, and you think business in Thailand might be for you, make sure to check out our in depth IPR Factsheet for Thailand, or get in touch with one of our experts!

Thailand and the EU: a background for SMEs

Thailand is the second largest economy in south-east Asia after Indonesia, acting as an ‘anchor economy’ for the neighbouring developing economies of Laos, Myanmar, and Cambodia. Heavily export-dependent, with more than two-thirds of GDP generated by exported products, Thailand exports over EUR 93.5 billion worth of goods and services annually, over EUR 17 billion of which go to EU countries.

Thailand is the EU’s third largest trading partner in the ASEAN region, and is Thailand’s third largest trading partner overall (after Japan and China). In March 2013, negotiations were launched for an EU-Thailand Free Trade Agreement (FTA) in order to better facilitate trade and regulate intellectual property and fair competition.

Prominent Thai industrial sectors include, electric appliances, components, computer components and vehicles.

Thailand is a signatory to both the Paris Convention for the Protection of Industrial Property, and the Patent Cooperation Treaty (PCT) and has acceded to the World Trade Organisation (WTO) Agreement on the Trade Related Aspects of International Property Rights (TRIPs). In addition, Thailand is currently overhauling its major IP laws, with particular focus on the Trademark Act and the Copyright Act.

In March 2013 Thailand launched the National IPR Centre of Enforcement (NICE) as a coordinating enforcement body and has had a dedicated Central Intellectual Property and International Trade Court (CIPITC) since 1997. This being said, disturbance caused by the recent military coup in 2014 has slowed legislative development, and enforcement practices are also still somewhat lacking for the time being.

This being said, Thailand’s current legislation meets the criteria necessary under its international obligations and there is a comprehensive framework in place for registration of all major IPRs which EU SMEs should take advantage of when seeking to do business in the country.

What are copyrights?

Copyright is a legal term used to describe an exclusive bundle of rights granted to authors, artists and other creators for their creations. These rights include two sets of rights, ‘economic’ rights, i.e. the right to profit from your creative work through exclusive right to approve or deny permission to copy, licence, show, play or perform, broadcast, or adapt your work. Economic rights can be assigned to another person or organisation where the creator of the work wishes it, or where the creation has been produced under specific contractual conditions to this effect. ‘Moral’ rights cannot be assigned or sold, they provide that the author has the rights to be identified as creator of the work (where asserted in writing) and object to the work being used in a derogatory way or altered.

Copyright in Thailand

The Thai Copyright Act recognises all copyrighted works conferred in foreign jurisdictions, provided that the creator is a national resident, or first published the work in a member country of the Berne Convention[1]. Copyrightable works include; literature music, drama, visual and graphic arts, such as (but not limited to) books, movies, songs, computer software, websites, and photographic works.

As required by the Convention, all copyrights are theoretically protected automatically upon creation (so long as they are expressed in a reproducible format, however it is still advisable to register copyrights in Thailand, as this will make proof of ownership much easier should you ever need to enforce your rights against infringers before the courts.

As per Thailand’s obligations under the Berne Convention, once expressed in a reproducible form, works eligible for copyright are protected for the lifetime of the author plus an additional period of 50 years after his or her death. The only exceptions to this rule are ‘works of applied art’ whose protection is reduced to 25 years.

Obtaining copyright registration in Thailand

In the event of a dispute, copyright registration can be extremely useful as proof of ownership before the courts. Any individual or corporation can register work, either through a legal representative, or by themselves if their domicile/head office is in Thailand, or they have real business operations in the country. All applications must be in Thai, or accompanied by a Thai translation.

There are no official fees for copyright registration in Thailand, although local agents will charge their own fees if rights holders are applying through a representative.

Applications should be made to the Department of Intellectual Property (DIP) at the Ministry of Commerce in Bangkok. Applications should include:

• 1 copy of the copyrighted work, together with:
  – The name of the creator/author
  – Date and place of creation
  – Date and place of first publication
  – Name and contact details of copyright owner
  – Name of the copyrighted work and brief details on creation and inspiration (10 lines)
• Full name, address, country, and occupation of the applicant
• Power Of Attorney (POA) documents, where application is made through an agent
• Signed copy of a valid ID of the signatory to the POA
• Original copy of certificate of incorporation of the applicant, where applying on the behalf of a company
• Statement of applicants rights, signed by the applicant
• Where the original author was contracted to create this work for the applicant, a copy of this contract is required

Enforcement

There are three main avenues for IP enforcement available in China, as well as a system of customs control which we will discuss in more detail in a future Helpdesk article. In many cases however, private mediation via legal professionals can be an effective first line of defence and should be considered as a viable option. In the event of infringement SMEs are encouraged to seek advice and support from legal professionals as to the current domestic administrative/judicial policy and the chances of success of different actions. SMEs are of course also welcome to contact the Helpdesk for free advice on how best to react to infringements and find the right lawyer to deal with your case.

Administrative actions

Due to a lack of resources and proper training in administrative enforcement agencies, coupled with weak punishments imposed on confirmed infringers, administrative measures are generally seen to be ineffective in Thailand. The system also suffers from leaks and corruption which undermines raid actions and investigative procedures.

This being said, the Thai government has committed to improve its administrative enforcement agencies with a focus on large-scale infringers and dangerous goods, primarily in ‘priority areas’, such as MBK and Panthip Plaza in Bangkok, Patong, Kata, and Karon beaches in Phuket, Walking Street in Pattaya, etc. As yet it is unclear where exactly improvements will be made and how this will affect the system as a whole however.

Civil litigation

Civil litigation is rarely used for IP cases in Thailand due to difficulties in proving ‘actual damages’, the lack of a formal discovery process, and the delays common in prosecuting cases. In addition, the Thai judiciary is still inexperienced in dealing with IP issues and case outcomes can be unpredictable.

Civil courts can in theory grant injunctions and awards of damages, however, difficulties in proving ‘emergency’ make injunctions rare and damages are still very low by international standards, often not covering the costs of bringing the action to court in the first place.

Criminal prosecution

Criminal prosecution is generally considered to be the most cost-effective enforcement mechanism available to IP rights holders in Thailand. However, search warrants are difficult to obtain and, as with administrative actions, leaks and corruption in the police force can render them fruitless.

The Thai judiciary has also been reluctant to impose harsh penalties on infringers, and as such there is little deterrent provided by even high profile criminal actions. Penalties for trade mark infringement for example can include a maximum fine of approximately EUR 10,000 and/or a prison sentence of up to 4 years. Fines rarely reach the maximum threshold however, and most sentences are reduced or suspended, especially for first-time offenders.

For more information on how to protect and enforce your copyrights in Thailand, check out our in depth IPR factsheet, or get in touch with our Helpdesk experts for free, in-depth advice, tailored to your needs.

[1] A full list of which can be found here: www.wipo.int/treaties/en/ip/berne