Scope of an Injunction against Internet Intermediaries for Copyright Infringing Activities of Third Parties under Thai Law compare with the European Union Framework

Abstract

     This article aims to study the scope of an injunction against internet intermediaries under Thai
law by comparing with the European Union Framework because Thai copyright law was amended to
allow a copyright holder to apply for an injunction against an internet intermediary to terminate
copyright infringement in its system. The study found that Thai copyright law already have had
provisions before the amendment that allow a copyright holder to apply for an injunction against a
person who violates his right to terminate the infringement and claim for damages and criminal
sanction. However, the amended provision does not require the holder to prove that an intermediary
violate his right but he can only apply for an injunction. By comparing to the European Framework,
the study found that copyright holders can apply for an injunction against an intermediary who has
the infringing activity to terminate the activity and also can ask to the intermediary to prevent further
infringement. However, the prevention order has two limitations. First, limitation under the Charter of
Fundamental Right and second is limitation under the regulations that allow the order. However, the
study found that Thai law does not allow this type of an injunction except where the intermediary
violates the holder right. If Thai law want to allow the holder to apply for an injunction to prevent
further infringement in other cases, the law must be amended. The study also found that the Charter
of Fundamental Right can be compared to the Constitution of Thailand which might impose a
restriction on the order. Furthermore, the study found that that copyright holders cannot apply for
an injunction against the intermediary who only has copyright infringement in its system to prevent
further infringement because the order might violate a freedom protected under the constitution.
Therefore, the only way to prevent further infringement under Thai law, the copyright holder must
prove that the intermediary violates copyright infringement.