THE SUPREME COURT DECISION

On the day of incident, the subagent of the injured persons together with the police officers searched “Duangdee Video 2”, the defendant’s video rental shop and found 22 videos made by a third party which infringed copyright. All of such videos were seized as exhibits. The defendant was arrested and charged on letting for hire or offering for letting for hire in public with commercial purposes without the permission of the injured persons and with the knowledge such videos infringed copyright.

Even though, the defendant had confessed during the process of arrest and inquiry, the defendant denied all charges before the court.

The arrest record and the statement signed by the defendant at the police station stated that most of the 22 videos were found on the counter inside the shop which was the place of business; however, the defendant testified that such videos found in the bedroom on the second floor were in the process of being labeled and had not yet been presented to the customer for hire. The defendant did not present any other evidence to prove such testimony. The Supreme Court did not believe the testimony of the defendant and held that the defendant was guilty of the charge of violating section 31(1) in conjunction with section 70 paragraph 2 of the Copyright Act B.E. 2537 (1994) .

Whether the statement recorded during inquiry was admissible against the defendant in a court of law?

The Central Intellectual Property and International Trade Court dismissed the case.

The Supreme Court reversed the decision and held that the defendant was guilty on the charge of violating section 31(1) in conjunction with section 70 paragraph 2 of the Copyright Act B.E. 2537 (1994).

According to the statement recorded by the inquiry official, authenticated by the defendant, most of the exhibits, the 22 videos which infringed copyright, were found on the counter inside the shop. The statement also stated that the defendant admitted that such videos were prepared for letting for hire.

On trial, the defendant testified that the 22 videos were bought from a salesperson representing the copyright owners. The defendant further claimed that the subagent and police officers had found them in the bedroom on the second floor of the shop where most of them had yet to be labeled and were still not ready for hire. Besides this testimony which contradicted the statement, no other evidence was presented in the trial in order to prove that the statement was false.

Moreover, there had been no history of conflict between the defendant and the police officer making the statement. So the aforesaid statement was not made in order to intentionally subject the defendant to punishment. Such an oral testimony could not be admissible against the written statement. The Supreme Court was of the opinion that the defendant had voluntarily pleaded guilty as mentioned in the statement. Such statement could be admissible as evidence against the defendant on trial under section 134 of the Criminal Procedure Code.

After weighting all the evidence, the Supreme Court heard that the police officers found 22 videos on the counter of the shop which was used as the place for business. Those 22 videos contained recordings of the cinematographic works as follows :

Considering the amount of such videos on the counter within the customers’ reach (even though all of them were not displayed on shelves or showcases for customers to choose) and the fact that defendant directly earned a living from letting for hire videos of cinematographic works, the Supreme Court was of the opinion that the defendant had intentionally offered them for letting for hire. Immaterial facts, such as the price or duration of hire, were not important in proving the guilt of the defendant so the plaintiff did not have to bring forward any witnesses to prove the said facts. The fact was clear to the court that the defendant had offered the videos for letting for hire. The Supreme Court did not have to decide whether the act of occupation for letting for hire violated the law or not because the result of such decision could not make any change to the judgment.

The judgment of the Central Intellectual Property and International Trade Court was reversed and the defendant was found guilty under the Copyright Act B.E. 2537 (1994) section 31 (1) in conjunction with section 70 paragraph 2 and liable to 3 months in prison and a 54,000 Baht fine. According to the confession, one third of the punishment was reduced under section 78 of the Penal Code. The defendant was still liable to 2 months imprisonment and a 36,000 Baht fine. The defendant did not have a prison record, so such punishment was suspended for 1 year. The videos infringed the copyright of the injured persons were forfeited and devolved on the copyright owners. The Supreme Court also ordered to disburse one half of the fine in accordance with the judgment to paid to the owner of copyright.[1]

letting for hire - offering for hire - evidence, weighting evidence - admissible evidence - intention - copyright - cinematographic work

[1] Under The Copyright Act B.E. 2537, Section 76, the fine shall be divined into two parts, one shall become the property of the state, the other shall be disbursed to the copyright owner.

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