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Thailand – FIFA World Cup

Copyright in Thailand

“It’s Offside!” – Broadcasters cry foul amidst football frenzy

In this year of the FIFA World Cup, it can be reasonably expected that commercial establishments across the globe would try to cash upon the popularity of the event by screening matches at their outlets in order to increase their clientele. But whether such screenings infringe upon the rights of the official broadcaster or not, is still a grey area in many jurisdictions, including Thailand. Though there are a few cases where the issue has been discussed, none is clear enough to be deemed as a precedent.

Under section 29(3) of the Thai Copyright Act, unauthorized public broadcast of an audio/video for money or any other commercial benefit constitutes infringement. Consequently, there is a strong buzz that this time around the official broadcasting agency may actually resort to taking legal action and/or impose royalty fee on commercial establishments who go ahead and screen live matches (without any authorization) on their premises and avail ‘commercial benefit’ by virtue of increased patronage. Furthermore, it’s also been contended that such unchecked ‘free screenings’ hit paid subscriptions hard, thereby bleeding official revenue collections.

A key bone of contention in this debate is what actually constitutes ‘other commercial benefit’ in the Copyright Act. The Ministry of Commerce interprets the term as an act, essentially involving some advertising or use of special equipment, to attract more customers to a business establishment screening ‘free’ matches. For instance, if a restaurant installs a signboard outside its premises informing the public that it would screen live matches and thereafter increases the price of food being served, it would qualify as infringement. Conversely, if it can be proved that the establishment provides such service in ordinary course of its business, and not only during a particular event such as the world cup, the liability of infringement would not arise.

The Supreme (Dika) Court hasn’t, per se, ruled on what constitutes ‘other commercial benefit’. However, decision 10579/2551 provides some insight as to how the Dika court is likely to deal with the issue. The case in point involves a karaoke bar (defendant), which had been hauled to the court for committing infringement by providing its customers an opportunity to listen and sing copyrighted songs without any authorization. The defendant claimed protection on the ground that there was no increase in the prices of its goods and services and hence, no ‘direct profit’ had accrued. The court found merit in the argument and ruled that playing music from mp3 discs for customers’ entertainment, without charging any additional fee for the service either directly (entrance fee) or indirectly (increased prices), would not qualify as infringement.

Though these interpretations provide some guidance, for a complete clarification a more direct analysis and interpretation of what constitutes ‘other commercial benefit’ is awaited from the Dika court. Till such time, each case would continue to be adjudged on facts and circumstances.

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