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1. Parties
Plaintiff:
Public Prosecutor, Office of the
Attorney-General
Joint Plaintiffs:
(1) Prentice-Hall Inc
(2) The McGraw- Hill Companies Inc
(3) International Publishing
Inc.
Defendant: Somsak Thanasaraseranee
2. Background and Issue
Background
The
plaintiff filed that the joint
plaintiffs are the owners of copyright
in literary works. The defendant copied
originals of the joint
plaintiffs’copyrighted works by the use
of copy machines including the whole
textbooks and some chapters. A
significant part of the books was
reproduced without the creation of a new
work and without the authorization of
the joint plaintiffs. With the knowledge
that he was infringing another persons
copyrighted works, the defendant sold
and offered for sale the said works. The
plaintiff also requested for
confiscation four copy machines used for
committing the offense.
The defendant
pleaded not guilty. He raised the issue
of exemption to the copyright
infringement for research or educational
work, which he claimed was carried out
under a hire of work contract between
the student and himself as the runner of
the photocopy shop.
Issue
(1) Whether the
defendant photocopied these copyrighted
works of the joint plaintiffs for
commercial purposes and sought profit
from the work or he had provided a
photocopying service as claimed.
(2) Whether the four
copy machines were the instruments used
for the purpose of committing the
offense.
3. Ruling
The
Central Intellectual Property and
International Trade Court found the
defendant guilty of copying another
person’s literary work protected by
copyright for the purpose of trade and
fined him 100,000 Baht. With regard to
the plaintiff’s request to court to
order a confiscation of the four copy
machines, it had not been established
that the said copy machines were
directly used for committing the offense
of copyright infringement. The defendant
carried on with his business of making
copies of documents for his customers,
i.e. by using the copy machines to
reproduce documents which could be
copied legally. Copy machines were
exhibits which were not the properties
used or being possessed for use for the
purpose of committing the offense
directly. The offense was committed by
making copies without permission. The
copy machines are instruments used in
making copies of various work, which the
defendant accepts as part of his work.
There is no reason to order a
confiscation of the said copy machines.
The Supreme Court agreed
with the fine penalty but amended the
decision of the Central Intellectual
Property and International Trade Court
by the forfeiture of the four copy
machines.
4. Opinion
The Central
Intellectual Property and International
Trade Court found that the
defendant photocopied the copyrighted
works using his own initiative and not
on the request of students. Therefore
the defendant could not claim a defense
of fair use because his act was not for
educational or research purposes. The
act was an infringement against the
literary work for commercial purposes
and profit .
The Supreme Court affirmed
the decision of the Central Intellectual
Property and International Trade Court
since no witnesses had come forward to
testify that the defendant had merely
made copies on the request of students.
It was found from the defendant’s
testimony answering cross-examination
that four copying machines are used to
photocopy the exhibit documents.
According to section 75 of the Copyright
Act B.E. 2537(1994) provided that “…all
things used for committing the offence
shall be forfeited”.
Therefore the said copy machines were
instruments used for the purpose of
committing the offense. The Supreme
Court ordered a confiscation of the four
copy machines.
5. Keywords
Copyright
infringement - Sale/ offering for sale –
Exemption - Fair use defense
Summarized
and Translated by
Saowalak
Jullamon
Edited by
Stephen
Lorriman
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