Technological protection measures and exceptions in the area of education under the copyright act of Thailand

Abstract

Thailand has promulgated the revised anti-circumvention provisions in 2022. This amendment strengthens the protection of technological measures by prohibiting both the direct act of circumvention and the trafficking of circumvention devices. However, there are problems concerning the vagueness of legal wording, which might affect the scope of protection, interpretation, and enforcement. There are limited lists of exceptions to anti-circumvention rules that adversely affect educational uses. Moreover, the administrative procedure for determining exceptions has not been well established in Thailand to monitor the impacts of these laws. There is a lack of agency to facilitate user engagement with digital knowledge. These render the exceptions unenforceable, potentially preventing access to digital knowledge for libraries, students, researchers, and other educational uses. Therefore, the purposes of this research are to demonstrate existing challenges and difficulties in the technological protection measures of Thailand. Then, new models of regulations, exceptions, and other appropriate measures will be proposed. This thesis employs doctrinal legal research and comparative methodology to critically compare and evaluate the scope of anticircumvention rules, exceptions, and other appropriate measures in selected jurisdictions. The common effects of access to digital knowledge will be investigated to provide practical solutions for Thailand and other developing countries. It is arguable that anti-circumvention regulations could prevent copyright infringement in the digital environment and enable the works to be available on the most convenient platforms. However, in the absence of limitation, the restrictive laws allow copyright holders to set prices for passwords or any electronic keys that are unaffordable for developing countries, which results in a pay-per-access society and the exclusion of users from online databases. This thesis suggests the model of legal definitions and prohibitions on circumvention to ensure that the laws effectively protect copyright works. It is important to insert the requirement on the intention of circumventors to reduce the severity of laws and identify the scope of prohibition. The legislative revision for anti-trafficking of circumvention devices is also suggested to prohibit commercial distribution of circumvention means and allow necessary devices to remain available for non-infringing uses. The thesis proposes to introduce exceptions for private study; exceptions concerning libraries and education should be modified and expanded to cover either prohibition of circumvention or trafficking devices to enable these communities to properly access knowledge. Moreover, the thesis recommends legislative reform to the ministerial procedure to determine additional exceptions and assess the impact of anti-circumvention rules. The establishment of a complaint process is proposed to implement the exceptions. Finally, the thesis contends that collective management organisations and the non-printed deposit system should be introduced to Thailand to make the knowledge available for educational communities without endangering the interests of copyright holders. These changes would maintain the balance of interests between all parties.