US brand Supreme's dispute over Thai Monk's photo

Thailand’s National Office of Buddhism will challenge an American fashion company Supreme New York, over use of an image of a Thai monk on a new shirt. This is not any image, but iconic late monk Luang Phor Koon who passed away in 2015 and is revered in Thailand. Mystical powers are said to imbue amulets he blessed when alive, even today. He was based at Wat Ban Rai, the famous elephant temple in the centre of Thailand. Wat Ban Rai’s management and his family say they were not asked for permission.  The press reports that the image of Luang Phor Koon was taken in the early 2000s and was sold on cloths to raise funds for the temple in Nakhon Ratchasima province. 

The image is probably protected by copyright, but subsistence and ownership may need to be proven yet.  The Thai DIP issued a press release  clarifying that the image of Luang Phor Koon is a creative work protected by copyright and if it is proved that the Ban Rai temple produced it, then they have exclusive rights. 

Eagle eyed observers have noted the image might be taken before the 2000s as it seems identical with a yant distributed in 1993 (the original talisman/ yantra cloth distributed 1993 to raise funds for the Temple). In addition, some argue that the yant itself is considered a work of applied art, and in Thailand copyright in such works last 25 years after the work was created/published. So it is not clear if the copyright has expired.

The Thai government has said it will issue a complaint to the New York skateboard and hip hop brand founded in 1994. The company sells mainly in US, EU, China and Japan and is in the process of being acquired by VF.  Although this is likely a copyright claim, the commercial use of religious iconography is always a sensitive issue. The image appears on the ‘Blessings Ripstop Shirt’ in Supreme’s Spring/Summer 2021 collection.  The image also features what is call yant, a sacred form of tattoo used by Buddhist monks or Brahmin holy men.

Social media is buzzing over the issue in Thailand and more widely in SE Asia. 

Thai court crackdown on pirate EPL matches

The English Premier League owns various rights, most importantly the broadcast rights to EPL games around the world. A key issue is preventing pirated live broadcasts of the games.  

In Thailand the authorities filed a series of criminal charges for copyright infringement and operating a business illegally without case against a group operating a pirated match streaming service called ThaiExpat.tv. ThaiExpat.tv used a series of domains around the SEA region, first located in Hong Kong, then also found in Indonesia, Singapore, Vietnam, and Malaysia to show live matches as well as offer a full suite of British TV content, including BBC, ITV and Sky programming. They also sold illegal streaming devices, which were preloaded with apps enabling pirate broadcasts of Premier League football.

The charges were:

• Copyright Act - infringement via making a broadcast available for commercial gain (s29(3) & s69), and circumventing technological protection measures
• Computer Related Crime Act – interception of data (s8)
• Broadcasting & Television Act – operating a broadcast business without permission (s66) and importing, selling, offering to sell or installing set top boxes for subscription broadcasts (s70)
• Foreign Business Act – operating a business not permitted for foreigners

The case was heard in the Bangkok IP/IT court following a Department of Special Investigation Technology and Cyber Crime Bureau raid in 2017. The individuals operating the pirate site were two Britons and a Thai woman. One British man originally arrested at the raid subsequently jumped bail and along with other individuals, is being sought by Thai police.  Two defendants plead guilty and the case finally reached sentencing last week.

On 29^th November the IP/IT court sentenced the two defendants a British man and his Thai wife to fines of 3 million baht as well as 2 and 1 year suspended jail sentences. They were required to hand over 7 million baht in cash found in their possession at the raid and pay damages totaling 15million baht. These are huge sums, which illustrate the amount of money IP crime can earn and in this case the severe penalties it can attract. Several of the group's foreign members remain on the run. 

ISP copyrght and trademark liability solutions in Philippines and Thailand

In the Philippines Senate Bill No. 2109 a.k.a. the Philippine Online Infringement Act is close to enactment. It will establish a system to allow complaints filed at the IPO to notify the National Telecommunications Commission to terminate trading licenses for ISPs that continue to permit hosted websites to infringe or assist copyright infringement.

Meanwhile in Thailand a new bill seeks to put teeth into a system which was out in place several years ago.  Thai copyright law amendments, details of which are here, failed to deliver the results needed. That is to require ISPs to take down infringing content or risk an injunction, Instead ISPs frequently require a  court order  to remove illicit content. The new bill establishes a  notice and takedown system to provide save harbor. If they don’t comply, ISPs become liable for the infringement.

In both countries copyright enforcement should become easier; however trademark infringements hosted by ISPs remain problematic. ISPs especially e-commerce sites also need safe harbor protected by notice and takedown, along with a threat of injunctions and if they fail to comply, liability. And if possible fast administrative site blocking.

New kids on the piracy block

For years movie anti piracy activity has been led by the Motion Picture Association, which helps its member film studios (principally the major Hollywood studios) address film piracy and market access. In Asia over decades they have work to address VCD, DVD, broadcast, camcording and online piracy. 

Now a new organization has appeared. The Alliance for Creativity and Entertainment (ACE) is a global anti-piracy coalition which represents many of the new content giants such as Amazon, Neflix, HBO, as well as the digital arms of many studios. 

In Thailand a new government anti-piracy agency opened in December. The Center of Operational Policing for Thailand Against Intellectual Property Violations and Crimes on the Internet Suppression, otherwise known as COPTICS, is a collaboration between The Royal Thai Police (RTP) and the Office of the National Broadcasting and Telecommunications Commission  (NBTC).  It aims to block piracy sites faster than in the past. Its first complaint was filed by Netflix. 

The digital world shifts every few years and this new structure represents the new content order and its needs to address piracy. Asia can expect to play a leading part in this as digital entertainment grows exponentially across the region. 

World Cup litigation in Thailand kicks off again

Every FIFA World Cup disputes erupt in Thailand over broadcast rights. See here for the 2014 dispute.

Now in 2018 Bangkok’s Central Intellectual Property and International Trade court has had to weigh in on it. TrueVisions had again licensed certain broadcasting rights from FIFA.  There are several free to air channels (as in most countries), which in Thailand include Army''s Channel 5, True4U Channel 24, and Amarin TV Channel 34. Thailand's National Broadcasting and Telecommunications Commission’s (NBTC) has ‘must carry’ rules which require free to air World Cup content (since many years ago, it was pay only, to the anger of Thai football fans). 

For the Russia 2018 World Cup TrueVision showed matches in higher quality 4K ultra high definition, apparently the first in the region. Its Channel 400 gives high speed 50Hz refresh rate coverage for Gold and Platinum subscribers. TrueVisions claim it is 20 times clearer than existing standard systems. 

Meanwhile telecoms operator, Advanced Info Services’ (AIS) companies have been showing matches through their App based content channels for AIS phone subscribers in Thailand.  They had been rebroadcasting World Soccer Cup 2018 programs from free TV stations including TV channel 5 HD , True 4U channel, and Amarin TV Channel 34 via the  AIS PLAY and AIS PLAYBOX Apps. 

TrueVisions sued AIS subsidiaries Mimo Tech and Super Broadband Network in the IP/IT court for infringement of its broadcast rights. Although AIS is rebroadcasting games which are available free to air, TrueVisions argued that it too as licensee or the broadcast owner FIFA AIS had to provide consent for AIS to stream the games. The IPIT court agreed that mobile streaming of the football games breached TrueVisions’ rights for the tournament. The court ordered the two AIS companies to stop broadcasting the matches on 28th June.

Thai TV copyrights set to grow in the new AEC era

Thai entertainment companies are now starting to look at the ASEAN Economic Community (AEC) as a source of growth. The AEC, South East Asia's new regional trade bloc started in 2016. Thai TV companies have announced that they want to create and sell TV formats to the SE Asian market, instead of being dependent mainly on foreign content.

 

The proof of this intention is in a series of recent deals with producers and advertisers for regional rights. Thai TV companes have learned from the international TV companies that investing in the IPRs in new show formats leads to the secondary ability to monetize the same content later on through relicensing abroad. Several new shows have launched with clear plans for distribution outside the kingdom.

Thai plagiarism dispute rumbles on

A UK agricultural consultant and longstanding Thai resident Dr Wyn Ellis was arrested at Bangkok airport last week - the latest horror in a longstanding IP related dispute.

It began in 2008 when Ellis found extracts of an old report on organic agriculture that he had prepared for the Thai government copied in a dissertation from a PhD student at Bangkok's top Chulalongkorn University. Upon further research he found most of it was plagiarized.  Unfortunately the student was Mr Supachai Lorlowhakarn the director of Thailand's National Innovation Agency (NIA), which is the Thai government body responsible for finding and investing in new Thai companies and a driver of IP protection in Thailand.

Dr Ellis reported the student. The university initially did nothing. The NIA director filed a number of court cases against Dr Ellis, including criminal defamation. A campaign of harassment began against Ellis. A journalist reporting the case was also sued and had to leave the country. By 2012 the University had investigated and revoked the PhD, criminal charges were filed against the NIA director and he was forced to leave office. Eventually Ellis won or settled all the court cases, by 2014. The battle seemed over. But in one last gasp a 2009 immigration blacklist entry has led to Ellis being detained as a national security threat.

The case is reported widely due to the IP issues, the fact of the official being director of a key innovation organization and because of extreme use of official power.

Thailand's 2015 Special 301 report

In its Special 301 report this year Thailand was maintained on the Priority Watch list. There are concerns over a lack of government priority for IP enforcement and weak coordination among government entities despite the National IPR Center of Enforcement operating since in 2013.

Outside practical enforcement, issues are raised about the backlog of pending patent applications, widespread unlicensed software in the public and private sectors, growing Internet-based copyright piracy, rampant trademark counterfeiting, lengthy civil IPR proceedings and low civil damages, the protecting of unfair commercial use, as well as unauthorized disclosure, of test data generated to obtain marketing approvals for pharma and agrochem products, and finally extensive cable and satellite signal theft.
 
On one hand the report praises the new Customs Act that provides Thai Customs officers with ex officio authority to suspend and seize illegal goods in transit, as well as copyright law amendments to address unauthorized camcording. On the other it complains of poor laws relating to the lack of a much-needed landlord liability provision, inadequate protections against the circumvention of technological protection measures and unauthorized modification of rights management information, and unclear operation of ISP notice-and-takedown procedures.

The Special 301 Priority Watch List doesn't compare countries at the same level. The interesting comparison with Indonesia reads in Thailand's favour since many of the above are complex IPR issues most of which are not even discussed in relation to Indonesia, given that Indonesia faces much more fundamental problems. Thailand is a more developed market so the US expects a higher level of IPR protection.

Digital ISP liability in Thailand

There are several areas where control over netizens is exercised in Thailand. The first is insulting the monarchy, lèse majesté. In 2012 an Internet user was convicted of this when she failed to delete from a forum she administered, allegedly insulting comments. The other is the equally vague issue of free speech. There have been several instances of content removal for this reason. It is said that a lack of Safe Harbour protections for ISPs leave them with uncertain liability and therefore they prefer to take down content without much inquiry. Especially as the 2014 coup and martial law has made them more conservative.
 
2 Digital Economy laws recently passed by the Thai military government make changes. An amendment to the 2007 Computer Crime Act, which makes ISPs liable for offenses such as lèse majesté by their users now provides that ISPs avoid liability only if they can prove that they have complied with the warning and removed the content. In essence it makes removal necessary, to avoid risk. 
 
Another amendment is meant is for copyright. ISPs are not liable if they do not control, initiate or order the infringement. Only a court order can override this. So for copyright the ISP protection is wider than for the free speech areas. ISPs exercising no control, the so called 'public utility' approach escape liability. Only when they start to take on editorial responsibility will liability arise. 

For now trademarks attract no such specific protection. Secondary liability is not specifically set out, but in practice ISPs do comply with IP holder requests.
 
IP Holders and ISPs will like the clarity the amendments bring. But beyond this, it will also helps tackle the problem of online infringement by setting clear borders. Because of the influence of Thailand's control of content deemed inappropriate for royal or free speech reasons, ISPs may still find it easier to take content down than risk liability. Free speech advocates may complain, but Thailand is a country with widespread IP problems that may justify such an approach.