Limitations on Using Fair Use Defenses in User-Derived Content and Proposals for Copyright Law Amendment

Abstract

Due to the internet and rapid technological development, internet users and individuals create their own contents, especially contents which derive from other’s copyrighted materials called user-derived content (“UDC”), and upload them on internet. In creating UDC, the creators usually use copyright materials without copyright owner’s authorization which can be considered as copyright infringement. Despite the large number of UDC, the exceptions of copyright infringement, which are stipulated in Copyright Act B.E. 2537 (1994) (Copyright Act), cannot be used to protect most of UDC creators from copyright infringement. Thus, the research for law amendment should be conducted to find appropriate measures to protect UDC creators.

The exceptions of copyright infringement in Copyright law of the United States, Canada, and South Korea are selected to be studied. It is found that the United States and South Korea have general exceptions of copyright infringement, which can be claimed to protect each UDC creators in the case of which the usage of copyrighted materials is fair use. On the other hand, it is found that Canada has a specific exception of copyright infringement for user-generated content (“UGC”), which can protect UDC creators from copyright infringement if they comply with the conditions set in law.

Therefore, this article proposes that Thailand should amend provisions relating to the exception of copyright infringement in Copyright Act for protecting UDC creators by using Canada's exception of copyright infringement as a model. Furthermore, Thailand should amend Article 32 of Copyright Act to be the general exception of copyright infringement by using the United States and South Korea exception of copyright infringement as a model. These proposed amendments would promote creator’s creative ideas to achieve the objectives of copyright law and support rapid technological advancement.