Problems of Moral Rights Protection in Copyright and neighbouring Rights under the Copyright Act B.E. 2537

Abstract

The objectives of this study are to (1) study the backgroud of the protection system, important features of copyright neighbouring rights and moral rights, (2) determine the comparison between the moral rights, (2) determine the comparison between the moral rights protection in the copyright and neighbouring rights under some foreign laws, international laws and Thai laws, (3) study the problems of the moral rights protection in the copyright and neighbouring rights under the Copyright Act B.E. 2537, and (4) issue the guidelines on moral rights protection in copyright and neighbouring rights.

This research is the qualitative research conducted based on documentary research, including textbooks, academic articles, research reports, theses, doctoral dissertations, publiscations in the faculty of law and other relevant faculties, national and international provisions as well as relevant scholarly academic viewpoints.

The results from this research revealed the problems and issued solutions for amending the Copyright Act B.E. 2537 were divided into 2 cases. The first case concerning protection of moral rights in the copyright were sub-categorized as follows; (1) the copyright protection's structure was suggested to change to the deual structure system to solve the problem of the copyright protection's structure; (2) the word "moral rights" was suggested to stipulate and define in the laws. The problem of unclear scope of the rights to clarify oneself as the author can be identified by defining the word "the rights of authorship" into the provision. The case of adjustment from the provision was suggested to be removed to avoid the problem of limitations on the rights to integrate works, but further types of moral rights was suggested to be additionally issued; (3) the probisions for the co-author and the juristic create were suggested to be added to solve the problem of being the author and the holder of moral rights; (4) the problem of exercising others' moral rights figured out by clarification of the moral right holder was suggested to be considered in both cases of whether the author has any inheritors or not; (5) problems of moral rights transfer or waiving could be resolved by designating moral rights as a non-transferable one but could be waived if the context of Thai provision changed. The moral rights could change and be designated as non-transferable or non-waivable; (6) the person breaching moral rights was suggested to be subjected to criminal fine with compoundable offense and incurs civil liability in restoring the reputation or honour of the author to its good position to solve the problem of inappropriate liability and prescripton, which was suggested to be fixed as that in the copyright case; (7) for solving the problems on relationship between moral rights and exemption from copyright infringement, moral rights was suggested to be designated as exemption from  copyright infringement; (8) currently the laws stipulating the protection of moral rights throughout the term of copyright was apropriate. However, if the context of Thailand changed, the term of moral rights protection could  be perpetual posting the problem on the term of moral rights protection; (9) the provisions on the effect of copyright termination was suggested to be provide for dissolving the problems on termination and survival of moral rights in case of copyright renunciation. The second case concerning the moral rights protection in the neighbouring rights that could be divided as follows; (1) the provisions on performer's moral rights protectiong was suggested to be added and provided for the stucture of right protection, definitions, type, cope of right, coperformer and use of moral rights, holder of moral rights, assignment and moral rights waiver, appropriate liability and prescription, relationships between moral rights and exemption from infringement of protection term and effect of perfromer's rights termination and survival of moral rights and; (2) the moral rights protection measures allowing an author to enjoy the right of identify of his work could also considered as the neighbouring rights. Previsions related to these measures were suggested to merely stipulate the rights to the author creating the cound recording and broadcasting work.