The Impropriety of Criminal Sanctions under the Thai Copyright Law

Abstract

Presently, the Copyright Act B.E. 2537 has imposed criminal sanctions to both of the commercial and non-commercial purposes infringements as stated in sections 69- 70 of such Act; which have exceeded the obligation under Article 61 of the TRIPs Agreement that requires the state members to provide criminal penalties to be applied at least in cases of copyright piracy on a commercial scale. This has created many drawbacks in the copyright protection system. For example, the criminal penalties may be used by the copyright owners as tools to threaten the infringers to pay them money. Moreover, section 76 of the Copyright Act B.E. 2537 states that “One half of the fine paid in accordance with the judgment shall be paid to the owner of copyright or performer's rights…” has encouraged the copyright owners to prosecute criminal cases against the infringers; as the amount of fines they may receive might exceed the amount of actual losses they suffer. As a result, the criminal sanctions under the Thai copyright law are said to be over-criminalized to protect the rights of the owners. Therefore, this article shall assess the impropriety of the current criminal sanctions based on the principles of crimes, the human right claims, and the economic analysis of criminal copyright law.