Use of an Injunction to Order Access Providers to Disable Access to Copyright Infringing Materials
Keywords:
Disable access, Copyright, Website blocking, Filtering contentAbstract
The purpose of this research is to analyze legislation options and procedures for obtaining an injunction ordering access providers to disable access to copyright infringing materials. This method has gained popularity in the European Union (EU), Singapore and Australia as an alternative to solve the problems experienced with a ‘Notice and Takedown’ approach when servers and contents are located outside of certain jurisdictions.
This is a qualitative study that aims to compare both the legal basis and practical processes used to award injunctions based on the principle of proportion that balances the interests of rights holders against rights such as freedom of expression. This study also purports to make a recommendation of a “best practices” model for the Kingdom of Thailand based on an analysis of the advantages and disadvantages as shown through legislation and case law from the European Union, United Kingdom, Singapore and Australia. This study also provides a historical analysis of the legislative and legal framework that Thailand has used to attempt to initiate a similar junction process. Especially the amended Computer Crime Act was meant to address these problems, but ultimately ran into unique problems of its own in practice; namely these were the application of the principle of proportion test rather than treating the issues of national security and copyright as separate issues. Furthermore, from a due process perspective this amended act was never clear in how copyright issues should be treated.
In conclusion, this study makes a recommendation of how an effective injunction process to enhance copyright protection in Thailand can be created as follows: First, amend the Copyright Act to include specific language authorizing injunctions by the Courts. Secondly, a process with clear steps for how to obtain and enforce an injunction should be provided. Finally, injunctions for the sake of protecting copyright should be viewed under the basis of copyright separately subject to the principle of proportion. Incorporating these recommendations, along with best practices from the examples provided, would give Thailand a solid basis for effective copyright protection.
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