Enforcement Guidelines of Copyright Law on Notice and Takedown: Limitation of Fair Use Defense

Abstract

            Notice and Takedown according to the Copyright Act (No. 5) B.E. 2565 has been a set of guidelines for a copyright owner to consider the ‘Fair Use Principle’, which is an exception to copyright infringement. Before notifying relevant service providers of the allegations, a copyright owner must examine whether such action is an exception to the copyright infringement. A service provider then operates to remove or suspend access to computer information on the service provider system or network. However, such criteria have not been clearly determined in the audit procedures to prove that the copyright owner has complied with the requirements. If the copyright owner does not adequately take into account sufficiently the copyright exceptions, it may result in unlawful notifications and unreasonable limitations on the user’s right to use the copyrighted work lawfully. Similarly, if the copyright owner informs the internet service provider with the knowledge or has reason to know that the information given is false, the copyright owner will be liable for any damages that occur as well.

          The purpose of this article is to study and compare the copyright laws of Thailand, the United States of America, and Germany to determine the extent of the enforcement of the ‘Fair Use Principle’, and to create guidelines for enforcing the Copyright Act (No. 5) B.E. 2565. From this research result, the researcher’s opinion is that a solution should be suggested by increasing the opportunity for the user to dispute a claim arising from the copyright owner before the service provider removes or suspends access to computer information in such infringement allegation from a system or network provider. The duration for bringing computer information back into the system or network by the service provider or ending the suspension of access to the data should also be reconsidered to achieve effective enforcement of Copyright Laws regarding the ‘Notice and Takedown’ and to be consistent with the problem of copyright infringement on the internet platform.