The exploitive use of criminal enforcement of copyright in Thailand : causes, consequences, and solutions

Abstract

Criminal enforcement is used as the principal enforcement mechanism against copyright infringement within Thailand. Indeed, more than 90% of copyright cases brought to the Central Intellectual Property and International Trade Court pertain to criminal copyright cases. However, the success of the extensive attempts given towards preventing copyright infringement in Thailand has been limited, evidenced by the fact that the country has been placed on the Priority Watch List of the United States Trade Representative (USTR) for nine consecutive years due to rampant copyright piracy in the kingdom.

This thesis not only examines the theoretical and legal frameworks of the criminal enforcement of copyright protection in Thailand, it also conducts empirical research through case analysis, surveys and interviews. Both qualitative and quantitative data is used through a mixed-methods approach to identify both the advantages of criminal enforcement and the respective relevance of each advantage (particularly in relation to the decision of copyright owners in using criminal enforcement).

The findings from this research demonstrate that criminal enforcement of copyright is only theoretically justified against egregious acts when civil enforcement is ineffective. The empirical findings of this thesis further show why copyright owners choose criminal enforcement as the principal enforcement mechanism for copyright infringement in Thailand – namely because of the cost advantages of criminal enforcement over civil enforcement. The exploitive use of criminal enforcement of copyright can be seen to have been overused in Thailand as it is theoretically unjustified, exceeds international obligations and primarily serves the private interests of copyright owners. Such overuse leads to negative consequences – notably a loss of respect for the criminal justice system, discrimination, misallocation or waste of limited public resources and harm being done to copyright policy.

As criminal enforcement of copyright is used due to its cost advantages, such enforcement in Thailand should be reformed in order to improve upon civil copyright enforcement while limiting the luxury of criminal enforcement. This, it is asserted here, shall encourage copyright owners to utilise civil enforcement rather than solely resorting to criminal enforcement. In addition, alternative enforcement mechanisms should be proposed in seeking to tackle those types of copyright infringement that traditional civil and criminal enforcement has struggled to counter. For example, administrative enforcement should be proposed to address minor copyright infringements and insolvent infringers while a graduated response system, in contrast, should be proposed to tackle significant and large-scale online copyright infringements.

This thesis offers important insights into the criminal enforcement of copyright through both theoretical and empirical perspectives. As for practical significance, the findings from this thesis are of benefit to lawmakers both in Thailand and other countries, with the research intending to instigate a rethink as to the use of criminal enforcement against copyright infringement.