by Wanneeya Attahakul
I. Introduction
Copyright law plays a central role in the present world and tends to be increasingly more important, especially since the nineteenth century because technologies has become more important in the world of communication, people can exchange information easier and faster through the internet. These new technologies challenge the copyright framework. Therefore, it is essential that those who enact copyright laws understand the fundamental policies, and the fundamental concepts of copyright systems to effectively amend their copyright laws and respond to the continuing changes in the nature of creative works.
Copyright law is unique to each country. However, the Berne Convention, the basics of international copyright protection, provides minimum standards for copyright protection: originality and the idea/ expression requirements. However, because copyright law in every country confronts the realities of new challenges, such as computer networks and new types of information, it is still a question of what works should be protected, or what the subject matter requirements should be.
This author studied copyright law in Thailand and in the United States. As such, this paper will compare the copyright laws of these two countries. The United States is representative of common law countries, and Thailand is representative of civil law countries. This paper will provide a guide for copyright law and propose responses and answers to contemporary questions raised in copyright law.
This paper will discuss and distinguish the copyrightable subject matter requirements in the United States and Thailand. Part II will provide a background of the requirements of both countries, consisting of their histories, policies, and fundamental concepts of subject matter requirements under the copyright laws of the United States and Thailand. Those fundamental concepts involve the nature of the work protected, and include originality, creativity, the scope of protection under the idea/expression dichotomy, fixation, and the non-illegal and moral work requirements. This paper will provide the required elements in each country to be a copyright subject matter because there some requirements common to the United States and Thailand, and some additional requirements that differ between the U.S. Copyright Act and the Thai Copyright Act. Part III will discuss in more detail each of the requirement for the respective countries. This part also provides and analyzes some cases to demonstrate the concepts and the significant differences between the United States and Thailand. Moreover, it discusses the significant distinctions between the U.S. Copyright Law and the Thai Copyright Act in each requirement, and identifies problems in each subject matter requirement.
Part IV will propose solutions to problems identified for each requirement. In the originality requirement, the Thai Copyright Act B.E. 2537 should have only two factors, regardless of the author’s expense, to meet the originality requirement like the United States Copyright Act of 1976. First, the author must engage in some intellectual endeavor of his own, and not just copy from a preexisting source. Second, the work must exhibit some amount of creativity. Furthermore, the Thai statute should clearly state in the originality requirement these two factors. Moreover, the Thai Copyright Act B.E. 2537 should add scenes a faire as a condition of the originality requirement to follow the purpose of copyright protection.
For the idea expression requirement, there is now no specific standard under the Thai idea/ expression requirement, whether it depends on the tangibility of a work, or the nature of the work, like the certain standards under the U.S. idea/ expression requirement.
Consequently, this paper proposes that the Thai Copyright law should consider the nature of the work instead of the tangibility of the work, as the standards for the idea/expression requirement.
Moreover, the Thai and the U.S. governments should consider the controversial issue of whether copyright law should protect the methodologies or processes adopted by programmers. This paper proposes that the U.S. and Thai copyright law should not allow copyright protection of methodologies, or processes adopted by programmers.
For the fixation requirement, section 102(a) of the U.S. Copyright Act should be changed to eliminate the fixation requirement for many reasons. For example, the U.S. Constitution provides only that Congress may grant exclusive rights in writings, regardless of whether those writings are fixed in a tangible medium.
For the non-illegal work requirement, Thailand and the United States should clearly provide in the Thai Copyright Act B.E. 2537 and the U.S. Copyright Act 1976, respectively, that the non-illegal requirement is also a copyrightable subject matter requirement. However, only the Thai statute should clearly provide for the non-illegal requirement. Moreover, the statutes should state that an illegal work, as a whole, not only an illegal part of a work, is not protected by the Thai and U.S. copyright law. Finally, for the moral work requirement, the Thai and U.S. statutes should not have a moral work requirement.
II. Background
A. In the United States, Congress over time changed its answer to the question of what works should be protected by copyright.
Section 102 of the U.S. Copyright Act represents the congressional judgment as to what works merit the grant of exclusive rights.[1] Section 102 establishes three requirements for copyrightable subject matter. First, the work must be “fixed” in a tangible medium of expression. Second, it must be an “original work of authorship.” Finally, ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection. In other words, copyright protection does not attach to every element of a work. The following explains the basics and the development of those elements.
1. Fixation Requirement
A protected work of authorship is intangible, and must be distinguished from a tangible object in which the work is fixed. For example, a copyrightable literary work is intangible. The paper, audio tape or floppy disk on which the literary work is recorded, or fixed, is tangible. Copyright law protects only the intangible literary work, not the tangible manifestation. However, an intangible literary work is eligible for copyright protection only once it has been fixed in a tangible form at least once.
According to legislative history, Congress established the definition of “fixed” in Section 101 of the U.S. Copyright Act of 1976: “(a) work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[2] The U.S. Copyright Act also adds that this medium may be one “now known or later developed.”[3] This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co.,[4] under which statutory copyrightability in certain cases has been made to depend upon the form of medium in which the work is fixed.[5] In White Smith, the court held that the perforated music rolls were parts of a machine which, when properly operated, produced musical tones in harmonious combination, but were not copies within the meaning of the Copyright Act.[6] The court interpreted the existing copyright statute to require that a “copy” of a musical composition be “a written or printed record of it in intelligible notation to human reader, not simply to a machine such as a player piano.[7]
2. Originality Requirement
Although U.S. copyright law has always required originality as a condition of copyright protection, it has not always done so expressly. Instead, courts found an originality requirement implicit in the statutes, and in the underlying language of the constitutional grant of authority to enact copyright laws.[8] Perhaps for this reason, the first time that Congress attempted a comprehensive statement of the sorts of works entitled to copyright protection, it chose language that mirrored that of the constitutional grant.[9] Section 4 of the 1909 Act provided that “the works for which copyright may be secured under that title shall include all the writings of the author.”[10]
However, in the 1976 Act, Congress chose a different language, “original works of authorship.” In using the phrase “original works of authorship,” rather than “all the writings of an author,” the intent of the 1976 Act was to avoid exhausting the constitutional power of Congress to legislate in the field of copyrightable subject matter[11]
Nevertheless, the 1976 Act does not indicate exactly what Congress meant by “original works of authorship.” The phrase “original works of authorship” is purposely left undefined because it is intended to incorporate without change the standard of originality established by the courts under the present copyright statute.[12] This standard does not require novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.[13] Consequently, the task of interpreting the scope of the statutory grant of copyright protection was left to the courts.
The reason why some level of creativity is required for copyright protection is that it would not make sense to grant exclusive rights to someone who merely copies a preexisting work. Furthermore, from an economic perspective, the mere copyist has supplied nothing to justify the cost of a grant of copyright; from a noneconomic perspective, the copyist has supplied nothing of his or her own.[14]
3. Idea/Expression Dichotomy
The legislative history of the final requirement for copyrightable subject matter, idea expression dichotomy, is somewhat vague, indicating primarily that the provision was intended to continue the status quo.[15] “Section 102(b) in no way enlarges or contracts the scope of copyright protection under the present law. Its purpose is to restate, in the context of the new single federal system of copyright, that the basic dichotomy between expression and idea remains unchanged.”[16] As a result, the courts must develop their own guiding principles. This specific exclusion helps maintain the distinction between copyright protection and patent law. Ideas and inventions are the subject matter of patents, while the expression of ideas is the subject matter of copyright law.
Under section 102(b) of the U.S. Copyright Act of 1976, copyright protection is limited to particular means of expressing ideas and facts and does not give copyright protection in the underlying ideas or facts themselves.[17] Therefore, others are able to use the ideas or information revealed by the author’s work without his permission.
B. As a result of Thailand’s rapid modernization and greater role in international trade, copyright law has a very long history in Thailand, especially in the subject matter requirements.
Although many people in Thailand have entertained the impression that copyright is something new, the result of Thailand’s rapid modernization and greater role in the international trade, copyright has a very long history in Thailand. This history could be traced back to the year 1892 when the Royal Proclamation of Vachirayan Library for the Protection of Literary work R.S. 111.[18] The Proclamation gave a limited protection, namely, prohibition of unauthorized reproduction of any part of, or any article published by the Vachirayan Library (the present day National Library) without prior permission of “Kamma-sampathikasapa.”[19]
In 1901, protection was provided in the Copyright Act R.S. 120 for all the authors of books upon registration.[20] In 1914, the Copyright Act R.S. 111 was amended to cover a wider range of works.[21]
Like the U.S. copyright law, the Thai copyright law has grown to protect new forms of literary and artistic works, and has been changed many times to answer the question of what works copyright law should protect. Since there was a lot of competition for foreign and domestic markets in Thailand and in other countries around the region, Thailand has been in the midst of rapid industrialization, making the transition from an agricultural society to a newly industrialized country, and using increasing amounts of new technology to stimulate economic growth.[22] According to the value of such advanced technology has become widely established in Thailand, it has played an essential part in the industrialization process.[23]
As a result of this world’s rapid technology growth and modernization, such as the creation of computer programs, sound and visual recordings performances, the leasing of audio-visual work, and the greater role of Thailand in international trade, especially in order to follow significant prodding by the United States,[24] the Thai government proposed a new copyright act to the parliament which was passed as the Copyright Act B.E. 2537 (A.D. 1994). Moreover, since Thailand became a member of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), Thai Copyright law was amended to meet the standard level of protection under the TRIPs Agreement.[25] Since Copyright Act B.E. 2537 was passed, there have been significant changes from the previous Act, including the subject matter requirements.
The fundamental subject matter requirement of copyright protection in Thailand is the author’s skill, effort, and labor to create a work which may be useful for all mankind. It does not matter how much a person uses her effort.[26] Moreover, the work cannot be a natural work.[27] For example, a work of sculpture which is created by a person is a copyrightable work, but a beautiful stone created from nature is not a protected subject matter of copyright.
Sections 4 and 6 of the Thai Copyright Act B.E. 2537 do not require fixation, but establish three requirements for copyrightable subject matter. First, under section 4 and section 6 paragraph 1, similar to the U.S. originality requirement, the work must be created or made by an author.[28] Even though the Copyright Act B.E. 2537 no longer uses the language “by his own initial idea,” which was addressed in the definition of “creator” in the previous Copyright Act B.E. 2521, the author must have engaged in some intellectual endeavor of her own, and not just have copied from a preexisting source.
Second, under section 6 paragraph 2, similar to the U.S. idea/ expression dichotomy, copyright protection shall not extend to any idea, procedure, process or system or method of use or operation or concept, principle, discovery, or scientific or mathematical theory.[29] This means that the Thai Copyright Act protects works in only the form in which it is expressed but does not protect the underlying ideas and information in the work. More importantly, copyright protection is limited to particular means of expression of ideas and facts, and does not give monopoly rights in the underlying ideas or facts themselves.
The final requirement, the non-illegal and moral work requirement, is still debatable, as to whether the Thai Copyright Act B.E. 2537 requires that, to be a copyrightable work, a work must be a non-illegal and moral work. Historically, there has not been a statement in the Thai Copyright Act B.E. 2537, 2521, and the Literary and Artistic Works Act B.E. 2474 providing clearly for this requirement. The only time it is provided for is in the Thai Copyright Act B.E. 2457; Thai copyright law limited copyright protection to some types of works. Therefore, to avoid this vagueness and the difficulty of interpreting the Thai subject matter requirements, the Thai government should amend the present statute.
III. There are some requirements for Copyright Subject Matter that are common to U.S. and Thai Copyright laws.
A. Originality Requirement
1. Originality in the United States
In the United States, a requirement for copyrightability is that a work be an “original work of authorship.”[30] In contrast, patent law requires that an invention be new, useful, and nonobvious to qualify for protection.[31]
Both as a statutory matter and as a constitutional matter, the modern definition of “originality” means only that the work was independently created by the author, as opposed to being copied from other works, and possesses at lease some minimal degree of creativity.[32] This means that the amount of originality required is extremely small.
For example, in Feist Publications, Inc. v. Rural Telephone Service Co.,[33] the plaintiff published a typical telephone directory that listed the names of its subscribers in alphabetical order along with each subscriber’s telephone number and town. The Court stated that facts are not copyrightable because they do not owe their origin to the author.[34] However, compilations of facts meet the originality standard for copyright only if the compiler independently makes choices as to selection and arrangement of the facts which entail a minimal degree of creativity.[35] Consequently, the mere labor of collecting data, “sweat of the brow,” does not warrant protection absent originality in the selection and arrangement of data.[36] In Feist, the names and telephone numbers of the subscribers were all facts and the plaintiff’s selection and arrangement involved no creativity.[37] Therefore, they could not be protected under copyright law.[38]
In Bleistein v. Donaldson Lithographing Co.,[39] the court recognized that originality does not depend on a work’s aesthetic merit. As a result, a copyrightable work need not be fine art.[40] In Bleistein, the plaintiff’s employees created three chromolithographs[41] depicting various circus scenes.[42] The posters depicted different circus scenes: one of an ordinary ballet, another of bicycle performers, and one of men and women costumed to represent statues.[43] Moreover, they were not made from anyone else.[44] The court rejected the notion that originality should be decided by judging the aesthetic merits of a work and held that the Plaintiff’s ordinary posters were original because they contained the artists’ personal imprint of creativity and uniqueness.[45]
In addition, a new arrangement of a public domain work can be copyrightable if it meets the standards of originality for a derivative work.[46] For example, in Italian Book Co. v. Rossi, copyright was asserted in music created by improvising additions to what the author could remember of Sicilian folk songs he had heard but nearly forgotten.[47] The court held that the songs were entitled to protection as derivative works.[48] In this case, the protection would extend only to those elements added by the authors to the public domain songs underlying their works.[49]
Even though the bar is set quite low in determining originality, where there is no other way of saying, photographing or otherwise creating an idea, the courts prevent the monopolization of that idea through the application of the “scenes a faire doctrine.”[50] Scenes a faire are incidents, characters, settings, or other elements which are indispensable, or at least standard, in the treatment of a given topic.[51] For example, the Court of Appeals for the Second Circuit held that elements such as drunks, prostitutes, vermin, and derelict cars would appear in any realistic work about the work of policemen in the South Bronx.[52] These elements are therefore unprotectible scenes a faire in such a work. Likewise, the Seventh Circuit stated that standard maze-chase game devices in video games, including the maze, scoring table, and tunnel exits, are unprotectible under the scenes a faire doctrine.[53] Such elements are expected and routine. No single author may prevent others from using them in their own works.
Moreover, under section 202, 1(a) of Chapter 37 of the Code of Federal Regulations, the Copyright Office has promulgated a regulation stating that words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; and mere listing of ingredients or contents will not qualify for copyright.[54] In addition, this regulation has frequently been stated by courts;[55] even if such things as book titles and short advertising slogans may be protected as trademarks, they are not copyrightable.
In order to further clarify what was considered a work of authorship, Congress included a list of eight works of authorship in the Act itself in section 102(a): (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.[56] Congress intended, according to the language in section 102(b) that shows that “[w]ork of authorship include the following categories” to provide these eight categories as only examples of works of authorship; as a result, if there is a new type of category, the new work can be a copyrightable subject matter if courts determine that Congress would intend to include it.
2. Originality in Thailand
Like the originality requirement of the U.S. Copyright Act of 1976, Sections 4 and 6, paragraph 1of the Copyright Act B.E.2537 require that a copyrightable work must be created or made by an author.[57] This originality requirement has three elements. First, the author must engage in some intellectual endeavor of his own, and not just copy from a preexisting source. Second, the work must exhibit some amount of creativity. Finally, it also depends on the creator’s expense.[58]
Therefore, the originality requirement gives creators more opportunity to receive copyright protection as long as he uses his skill, effort, and labor to create his work and does not copy from others’ work. In contrast, patent law requires that an invention be new to qualify for protection.[59] Therefore, an inventor is not entitled as a patent owner if his invention is the same as or similar to any preexisting invention, even though he does not copy from the preexisting source.
An example is when ten students draw the Statue of Liberty on their paper at the same corner, location, and time. These paintings are original works even if they look similar because each student uses his skill, effort, and labor to create his work and does not copy from others’ work. On the contrary, if the originality principle requires novelty of works, those students who finish their drawings after the first one are not entitled to copyright protection. Their works are not new because they look similar to the first one’s work.
Another example is Case No. 2750/2537,[60] where the court held that even though the plaintiff composed the Thai dictionary by using an ancient process, he used his skill, effort, and labor to create his own definitions of each word, and put some pictures to define some words. Moreover, he did not copy from others’ work.[61] Therefore, he is a creator under section 4 of the Thai Copyright Act B.E. 2537.[62]
In addition, section 12 of the Thai Copyright Act B.E. 2537 extends protection to compilations as copyrightable subject matter.[63] A compilation results from an author’s selection, bringing together, organizing, and arranging previously existing materials of all kinds, regardless of whether the individual materials he is working with are themselves copyrightable.[64] To be a copyrightable work, the creator of compilation must use his skill, effort, and labor to create the resulting work different from the previously existing work.
A copyrightable work does not depend on a work’s quality and value. The Thai copyright law protects any original work that meets the requirements for copyrightable subject matter, regardless of who creates the work, the creator’s or reader’s preference, how to perceive, whether the work is beautiful or unsightly, whether the work is melodious or whether it has aesthetic merit.[65] Therefore, whether the work is original does not depend on someone’s subjective preference for or against the work. This also can imply that the amount of originality required is extremely small, like in the United States.
Sections 4 and 15 of the Thai Copyright Act B.E. 2537, in addition to original work, also provide that derivative works are within the subject matter of copyright.[66] To be copyrightable, the derivative work must contain some substantial variation from the underlying work on which the derivative work is based.[67] For instance, in Case No. 848/2519, the plaintiff hired a musician and a singer to play an old Thai song with an expired copyright.[68] The plaintiff made a sound recording of the song to sell tape records.[69] The court reasoned that the plaintiff’s music and recorded sound were not copyrightable; the plaintiff only reproduced from the public domain and there was no change to support a derivative work copyright.[70]
Here, the court applied the same rule as the Bleistein court: a new arrangement of a public domain work can be copyrightable if it meets the standards of originality for a derivative work. In the Thai case, the plaintiff did not create by improvising additions to the domain work so the plaintiff’s work was not copyrightable, as compared to the plaintiff’s songs in Bleistein which were created by improvising additions to what the author could remember of Sicilian folk songs, so the plaintiff’s songs were entitled to copyright protection.
Furthermore, Section 12 of the Thai Copyright Act B.E. 2537 provides copyright protection for works that are compilations or compositions of copyright works.[71] Like U.S. copyright law, a compiler must independently make choices in the selection and arrangement of the facts, which entail a minimal degree of creativity.
Section 6 of the Thai Copyright Act B.E. 2537 provides that works of authorship must fall within the categories of literary, dramatic, artistic, musical, audiovisual, cinematographic, sound recording, sound and video broadcasting work or any other works in the literary, scientific or artistic domain, whatever may be the mode or form of its expression.[72] However, like in the United States, these categories are not intended to be absolute, as stated in section 6, which states that the categories include “any other works in the literary, scientific or artistic domain.” The Thai statute left a little flexibility for the courts. Consequently, if something new in the literary, scientific, or artistic domain does not fit within any of the listed categories, it may still be protected.
3. A Comparison of Originality Requirement in Both Countries
Under both section 102(a) of the U.S. Copyright Act of 1976 and section 4 and 6 paragraph 1 of the Thai Copyright Act B.E. 2537, a copyrightable subject matter must be original to qualify for copyright protection. In both countries, the required level of creativity is extremely small. Moreover, novelty is not a factor in both countries in determining whether a work is protected by copyright. Finally, to meet the originality requirement of both countries, a copyrightable work does not depend on a work’s aesthetic merit.
Furthermore, both countries also protect a compilation if the compilation involves some originality beyond mere alphabetic sorting of all available works, and a derivative work if it contains some substantial variation from the underlying work on which the derivative work is based.
However, even though both countries consistently require an extremely small amount of originality, whether a work is sufficiently creative depends on different factors. The United States only has two factors to meet the originality requirement: that the work is independently created by the author, and it possesses at lease some minimal degree of creativity. Thailand, like the United States, requires these two factors. In addition, Thailand considers an author’s expense as an additional factor of originality.
Moreover, the same three factors above are also applied to analyze whether compilations and derivative works meet the originality requirement in Thailand. Therefore, determining the originality requirement of compilation and derivative works in Thailand and the United States are also different; as stated above, there are three factors in Thailand and there are only two factors in the United States. However, some courts, such as the Court in Case No. 848/2519[73] do not consider the author’s expense as a condition. Consequently, the factors needed to meet the originality requirement in Thailand are still inconsistent among Thai cases. To provide uniformity in the Thai copyright law, this paper provides some propositions.[74]
In addition, unlike the United States, the Thai Copyright Act B.E. 2537 does not provide scenes a faire doctrine, where there is no protection if the subject matter represented can be expressed in no other way than through the particular scenes a faire. Therefore, Thailand does not exclude a work that can be expressed in only a limited number of ways.
Finally, unlike the United States, the Thai copyright law will protect works of authorship that do not fit within the listed categories only when they are works in the literary, scientific, or artistic domain.
B. The Idea/Expression Dichotomy
1. The Idea/Expression Dichotomy in the United States
Section 102(b) of the U.S. Copyright Act of 1976 makes clear that copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. An author is not required to distinguish those parts of his work he considers original expression, which are protected, and those parts he considers idea that are not protected.[75] That problem is left to the courts in infringement litigation.
As stated above, because the originality threshold for copyrightability is very low, the analysis for achieving the proper balance primarily involves distinguishing an idea from an expression. What the courts consider an idea and what the courts consider an expression, or the scope of protection, varies with the nature of the work.
For example, in Nichols v. Universal Pictures Corp.,[76] the plaintiff alleged that the copyright in her play was infringed by defendant's movie. Both stories were about the marriage of an Irish man and a Jewish woman and the differences between their families.[77] The court found that the two stories were different as to incident and character, and thus there was no infringement.[78] As for plots, the only matter common to the two was a quarrel between a Jewish father and an Irish father, the marriage of their children, the birth of grandchildren, and a reconciliation.[79] The court found such theme was only a part of the plaintiff's ideas, and therefore was not copyrightable.
In Baker v. Selden,[80] the court drew a distinction between an author's original writing, which was a valid subject of copyright, and an idea, which generally was considered to be community property and was the subject not of copyright but of a patent if completely original to the author. In this case, the plaintiff claimed copyright in a book that explained a particular method of bookkeeping and included blank forms for using the method.[81] When the defendant published a book that included forms for use in the plaintiff’s bookkeeping method, the plaintiff sued for copyright infringement.[82] The court held that when the art taught by a work of authorship cannot be used without copying some aspect of the work of authorship, then that aspect of the work will not be protected by copyright.[83] The Court reasoned that if the plaintiff had a right in his form, the only way of implementing the bookkeeping method, the plaintiff would have a monopoly in the bookkeeping method itself without satisfying the stringent requirements of patent law.[84]
A doctrine related to the idea expression dichotomy is the doctrine of merger. If only one or a limited number of ways exist to express an idea, the idea and expression merge into an uncopyrightable whole.[85] For example, in Morrissey v. Procter & Gamble Co.,[86] the court held that a set of rules for a sales promotional contest of the sweepstakes type involving the social security numbers of the participants is not copyrightable because this idea, subject matter, with at best only a limited number of forms of expression, is not copyrightable.
Even under section 102(b), copyright protection is limited to particular means of expressing ideas and facts and does not give copyright protection in the underlying idea or facts themselves. Some concern has been expressed that copyright protection in computer programs should extend to the methodology or processes adopted by the programmer, rather than merely to the writing expressing his ideas.[87] Under section 102(b), the U.S. Copyright Act states clearly that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law. Therefore, this might be an important issue in the future whether the U.S. Copyright Act should be changed and extended to protect the actual processes or methods embodied in the program. Nevertheless, under the present law, section 102(b) in no way enlarges the scope of copyright protection.
2. The Idea/Expression Dichotomy in Thailand
Like U.S. copyright law, Thai copyright protection is limited to particular means of expressing ideas and facts and does not give monopoly rights in the underlying ideas or facts themselves under section 6 paragraph 2 of the Thai Copyright Act B.E. 2537.[88]
Thai copyright law separates unprotectable systems or processes from copyrightable expression. For example, in Case No. 7036/2543, the plaintiff composed and developed a mathematical exercise book for students in grades 1 to 6.[89] This work comprised of mathematical questions, methods, ways to analyze questions, and mathematical questions in the appendix.[90] The plaintiff’s book was composed of numbers, pictures, symbols, signs, and mathematical questions to help readers easily understand each step, and persuade readers to learn to calculate faster.[91] The plaintiff created this book from his information, and from many years of teaching experience.[92] The court held that the plaintiff independently created the book to help students calculate faster.[93] The book was not an idea, procedure, process or system or method of use or operation or concept, principle, discovery, or scientific or mathematical theory. Therefore, the book was a copyrightable subject matter.
Thai copyright law does not extend copyright protection to ideas, procedures, or processes. Therefore, anyone might use the ideas, procedures or processes to create his own original work. Nevertheless, to create a copyrightable subject matter, the person must create his own information, details, and expression of idea. He cannot use only the main ideas of others’ works.
For example, in Case No. 1908/2546,[94] the defendant’s book contained the same contexts as the plaintiff’s main idea in 30 of 150 pages of the plaintiff’s book. Some sentences of the defendant’s book were the same as some sentences in plaintiff’s book word for word, but some sentences were changed to make a few distinctions.[95] The court found that this incident hardly happens; consequently, the court found that the defendant did not create his own information and expression of idea; instead he used only the main idea of the plaintiff’s work.[96] Therefore, the defendant infringed the plaintiff’s right.[97]
Thai copyright law has the same problem as U.S. copyright law in that the difficulty in applying this rule is in distinguishing between ideas and expression. There is still the conflict as to what condition should be considered to meet the idea/ expression requirement. Some believe, like Professor Jakkrit Koapot, that only a concrete work can be an expression of an idea.[98] This means that an abstract work does not meet the idea/ expression requirement.
For example, if a person decides to write a poem, song, or draw a painting, these thoughts are only his ideas and they are subjective or abstract. Therefore, copyright protection would not expand to these ideas. In contrast, if a person puts more details and features in these ideas, and express or show these ideas, the expression of ideas is copyrightable, but the ideas themselves are still not copyrightable.
Furthermore, some believe, like Professor Chaiyos Hemalatchata that to meet the idea/ expression requirement, a work need to be tangible.[99] This tangibility condition is harder to meet than the concreteness condition because some works might be concrete, but not tangible in that they are not fixed in tangible mediums.
For instance, under the tangibility condition, a speech is not a copyrightable subject matter because it is not fixed in a tangible medium, such as a paper or a video tape. On the other hand, under the concreteness condition, it is a copyrightable subject matter because an author puts details in his ideas, and expresses his ideas by speaking in front of the public. His speech is a copyrightable subject matter even if it is not recorded in a tangible medium. Due to this conflict, this paper will later propose a resolution of what the condition should be.[100]
3. A Comparison of the Idea/ Expression Dichotomy in Both Countries
Both the Thailand Copyright Act B.E. 2537 and the United States Copyright Act of 1976 require an expression of an idea to be a copyrightable subject matter. Both U.S. and Thai copyright protection do not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.
Nevertheless, both countries have their own principles to determine whether a work meets the idea expression requirement. In the United States, whether a work is an expression of an idea depends on its nature. On the contrary, determining the Thai idea/ expression requirement is still debatable; there is now no predictable standard to meet the Thai idea/ expression requirement, whether it depends on the concreteness of a work, the tangibility of a work, or the nature of a work, like the predictable standard in evaluating the U.S. idea/ expression requirement.[101]
In addition, the Thai government should consider whether the Copyright Act B.E. 2537 should be changed to give some exceptions to the idea expression requirement. For example, the recent Act extends the scope of copyright protection to protect a computer program under the definition of literary work. However, as stated above, there is some concern in the United States about protecting the methodology or processes adopted by programmers. The Thai government should reconsider this issue, which will definitely be raised in Thailand in the future.[102]
IV. There are additional requirements that the U.S. Copyright Act and the Thai Copyright Act do not share.
A. Fixation Requirement
1. Fixation in the United States
In the United States, the Constitution provides only that Congress may grant exclusive rights in writings, and under 17 U.S.C. section 102(a), to be a copyrightable work, the work must be fixed in a tangible medium of expression.[103] Therefore works that are not fixed in a tangible medium qualify as writings if those works is in a form in which others can perceive it.
The U.S. Copyright Act of 1976 makes no distinction on what the form, manner, or medium of fixation may be – whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device “now known or later developed.”
For example, in the case of computers, to meet the fixation requirement, a work must be recorded onto some form of medium, which in the computer context includes floppy disks, CD-ROMs, and digital storage devices. In MAI Systems Corp. v. Peak Computer, Inc.,[104] the court held that loading software or other work into RAM creates a copy that is sufficiently fixed in a tangible medium because it can be accessed. In Stern Electronics, Inc. v. Kaufman,[105] the court stated that work in a computer’s memory satisfies the fixation requirement. On the other hand, reciting a poem to a live audience, or improvising jazz in front of them, indubitably fails to satisfy the prerequisites of fixation.
Under section 101 of the statute, the definition of fixation provides by implication that a work will not be deemed fixed unless its embodiment in a copy or phonorecord was done by or under the authority of the author.[106] Therefore, an unauthorized fixation will not qualify a work for copyright protection.
Normally, an author must fix a new work, for example by making a sound or video recording of it before publicly performing it to receive federal copyright protection at the time of the performance. Therefore, if the work is unfixed, federal copyright law will not prohibit audiences from copying it.
However, section 101, provides for the status of live broadcasts, such as sports, news coverage, and live performance of music as reaching the public in unfixed form but are simultaneously being recorded.[107] In fact, fixation simultaneous with performance will suffice to trigger copyright protection at the time of performance if the performance is being transmitted by a device or process that causes images or sounds to be received beyond the place from which they are sent.[108] For example, live television will be protected by copyright if it is recorded on a videotape at the same time they are broadcasted.
Some states might continue providing common law copyright protection for works of authorship that is not fixed in a tangible form.[109] Nevertheless, those works do not qualify for federal protection. A few state cases indicate that protection may be afforded for a person’s extemporaneous oral statements, but only if the speaker makes it clear that he intends to claim a proprietary interest in his words.[110]
2. Fixation in Thailand
As the Berne Convention leaves the decision about whether to require fixation to each of the member countries, and neither the WIPO Copyright Treaty nor the TRIPs Agreement mentions fixation, Thailand has decided not to require fixation.[111] In fact, Thailand accords a work copyright protection as soon as it is in a form in which others can perceive it, regardless of whether it is also fixed in a tangible medium. As a result, such works might include, for instance, improvisational performances and off-the-cuff lectures.
B. Non-illegal and Moral Work Requirement
1. Non-illegal and Moral Work in Thailand
The Thai Copyright Act B.E. 2537 does not clearly provide whether to be a copyrightable work, the work must be a non-illegal work, and must meet the Thai moral standard.
There is, however, a case where the court held that a plaintiff’s video tape was not a copyrightable work, as the video tape was obscene. In Case No. 3705/2530,[112] some parts of the plaintiff’s video consisted of sex scenes. The court held that the obscene video was not a copyrightable subject matter because the obscene work was an illegal work under the Thai Criminal Law Act which provides that whoever produces or occupies obscenity violates criminal law.[113] Consequently, according to this case, it is implied that an illegal work, such as an obscene work is not a copyrightable subject matter in Thailand.
2. Non-illegal and Moral Work in the United States
In the United States, there is no context in the Constitution, the United States Copyright Act of 1976, and previous statutes providing that a copyrightable subject matter must be a non-illegal work, and must meet the U.S. moral standard.
Even though the First Amendment permits Congress and the states to ban obscenity, it does not contain an affirmative requirement that obscenity must be proscribed. Moreover, according to the constitutional purpose, Congress has a copyright power to promote the progress of science and useful Arts by allowing all creative works to be accorded copyright protection regardless of subject matter or content, trusting to the public taste to reward creators of useful works and to deny creators of useless works any reward.[114]
Consequently, unlike in Thailand, a court in the United States held that obscene work can be a copyrightable subject matter. In Mitchell Bros. Film Group v. Cinema Adult Theater,[115] the court held that it was improper to permit that assertion of obscenity as an affirmative defense to a copyright infringement claim because nothing in the Constitution, and the 1909 Act indicated that obscene materials could not be copyrighted. Therefore, the plaintiff’s movie, Behind the Green Door, was copyrightable subject matter.
V. The Copyrightable Subject Matter Provision of Both the U.S. Copyright Act of 1976 and the Thai Copyright Act B.E. 2537 should be amended
A. Originality Requirement
The Thai Copyright Act B.E. 2537 should have only two factors to meet the originality requirement, like the United States Copyright Act of 1976. As stated above, whether a work is sufficiently creative depends on different factors in Thailand and the United States. The United States does not look at an author’s expense, but Thailand does. The investment of an author should not be considered as a factor to meet the originality requirement because the fundamental purpose of the originality requirement is to grant exclusive rights to a creator to appropriate the benefits of his creation. The benefit the creator receives from the public should come only from the imagination of the creator, not the money of the creator. The investment of the creator, his money, does not show any creativity at all. If we consider the creator’s expense as a factor of originality, someone who creates a work by his own labor, and skill without money might lose his work to another who can show that he spends a lot of money to create the work. Therefore, the Thai Copyright Act B.E. 2537 should have only two factors to meet the originality requirement, like the United States Copyright Act of 1976.
The United States Copyright Act of 1976 and the Thai Copyright Act B.E. 2537 does not clearly state the factors as conditions of the originality requirement. The Thai statute should clearly state in the originality requirement provision that only the following factors are the condition of the originality requirement to avoid confusion in the future. First, the author must engage in some intellectual endeavor of his own, and not just copy from a preexisting source. Second, the work must exhibit some amount of creativity. The two main reasons are, as stated above, that it creates inconsistencies among Thai cases because some courts apply the author’s expense factor but some courts do not. Since Thailand is a civil law country, Thai law relies mainly on the Constitution and statute themselves for uniformity in the Thai copyright law. The Thai statute, thus, should clearly state in the originality requirement provision that there are only two conditions for originality.
On the contrary, in the United States, a common law country, the law relies on a set of rules or laws based upon what has been socially acceptable or generally agreed upon in the past. For example, in the United States, the scenes a faire doctrine has been strongly acceptable as a basic principle of the originality requirement; therefore, the U.S. statute does not need to provide the doctrine again because courts will follow precedents.
Additionally, the Thai Copyright Act B.E. 2537 does not exclude a work that can be expressed in only a limited number of ways. The purpose of the doctrine would be that granting copyright in the work is equal to giving the first author a monopoly on the commonplace ideas behind the scenes a faire. This is not the purpose of the originality requirement. Creating a work which has only a limited number of ways to express does not show the author’s creativity. Therefore, the Thai Copyright Act B.E. 2537 should add the scenes a faire as a condition of the originality requirement.
B. The Idea Expression Dichotomy
As stated above, there is now no specific standards under the Thai idea/ expression requirement, whether it depends on the tangibility of a work, or the nature of the work, like the certain standards under the U.S. idea/ expression requirement.
The Thai Copyright law should consider the nature of the work instead of the tangibility of the work, as the standards for the idea/expression requirement. For example, if it is a literary work, such as poems and writings, the expression of an idea should be written on an object. Besides, an impromptu can be held as an expression of an idea because the creator already expresses his idea by speaking even if the impromptu is not written on any object. Therefore, this nature of work standard is similar to the concreteness of work standard; a copyrightable work does not have to be tangible if it is concrete.
There are three main reasons why the Thai Copyright law should consider the nature of the work, instead of the tangibility of the work, as the standard of the idea/expression requirement. First, the Thai copyright law does not require fixation. This approach would encourage investors to develop new sorts of innovations, and since the development of new sorts of economically valuable information products is increasing, courts need some flexibility to analyze whether a work is an expression of an idea on a case by case basis.
First, if the Thai copyright law considers the tangibility of the work as the standard of the idea/expression requirement, many creative works that are not physically manifested, are not eligible as copyrightable subject matters. This means that the Thai copyright law would require that a copyright work has to be fixed in a tangible medium of expression. Thai copyright law does not have a fixation requirement, so imposing that copyrightable subject matters be fixed in a tangible medium of expression is not consistent with the purpose of the Thai copyright law; Thailand choose not to require fixation.[116]
Second, since the development of new sorts of economically valuable information is increasing, if the statute does not explicitly provide the standard, some courts might face difficulty in distinguishing between an idea and an expression of an idea, and apply the narrower standard, the tangibility standard, which would exclude many intangible works that actually eligible for copyright protection.
The Thai Copyright Act B.E. 2537 should state clearly that the nature of the work is the standard of the idea/ expression requirement to allow courts more flexibility based on the nature of work standard to judge in the fairest way. More importantly, the Thai Copyright Act B.E. 2537 should leave a little flexibility for courts. If something new fits within originality requirement and any of the listed categories, it should be protected if the court determines that it is an expression of an idea based on the nature of the work.
For example, in Apple Computer, Inc. v. Franklin Computer Corp.,[117] the court stated that one must distinguish between the method in which the computer operates internally, and the program, which is the set of instructions the computer follows in the course of carrying out the method. The difference is the same as between a method of building a model airplane, and the written instructions for building the plane. The instructions are merely the expression of the method, and as expression, are within the subject matter of copyright. As soon as there are sufficient alternative ways to express the same underlying method, the instructions can be protected by copyright.[118]
Finally, some innovations need some incentive for creation. Otherwise, investors would not develop those innovations and devote them to the public if they cannot benefit from their works and if they knew that their creative intangible works are not copyrightable. Therefore, this might adversely affect the public’s interest if there is no development of some works. In the United States, the law is more flexible by considering what an expression of an idea based on the nature of the work, regardless of whether the work is tangible. Following this approach, investors will be encouraged to create.
Moreover, as stated above, the Thai and U.S. governments should consider the debatable issue of whether copyright should protect the methodology or processes adopted by programmers, which will definitely be raised in Thailand in the future and is still being debated in the United States. The U.S. copyright law should not allow copyright protection to the methodology or processes adopted by programmers. As mentioned above, the purpose of the U.S. copyright law is to promote the progress of Science by securing for limited times to Authors the exclusive right to their respective writings. The U.S. copyright law serves to protect the writings of authors against unauthorized copying. Only works that are original are protected; as a result, independent creation by another without access to the copyrighted work would not be copyright infringement. In fact, the U.S. copyright law entitles the second work to copyright protection in its own right.
Unlike the U.S. copyright law, the purpose of the U.S. patent law is to promote the progress of useful arts by securing for limited times to inventors the exclusive right to their discoveries. Therefore, only a useful process, machine, manufacture, or composition of matter, or any useful improvement thereof can be protected by a patent.[119] Furthermore, the U.S. patent law requires novelty, and non-obviousness.[120]
Consequently, the novelty requirement of patent law contrasts with the originality requirement of copyright law. The novelty and non-obvious requirements state that the invention must not be a part of the prior art and not be an obvious variation of the prior art. As a result, an invention is not entitled to patent protection if it does not meet all these three requirements even though the invention is created independently from the prior art, unlike the U.S. copyright law.
Moreover, section 102(b) shows explicitly that Congress intends to distinguish between an expression adopted by the programmer, and the actual processes or methods embodied in the program. Therefore, the scope of copyright protection under the present law does not expand to the methodology or processes adopted by the programmer.
Congress intends to prevent overlapping protections under the copyright and patent laws. More importantly, it clearly shows that copyright protection covers only the expression, either in its original source code format, or in its machine-readable format within the definition of writing for copyright purposes.[121] Separately, patent protection covers ideas, which in this case are the methods and processes embodied in the program.
If copyright is extended to protect ideas, methodology or processes adopted by programmers, then those ideas would be protected by copyright even if those ideas do not meet the rigorous prerequisites of patent law, such as the novelty requirement. Creators of methods and processes would be able to claim copyright protection for their inventions if they cannot claim patent protection.
Otherwise, they might be able to claim both copyright and patent protection and take advantage of both laws. This is not the purpose of the copyright and patent laws. For example, utility patents expire seventeen years (or fourteen years in the case of design patents) from the date of filing with the U.S. Patent and Trademark Office.[122] Since protection for inventions gives a monopoly right in the exploitation of an idea, such protection is short in duration.
In contrast, copyright prevents only unauthorized use of the expressions of ideas. A person who has disclosed to the public an idea cannot prevent third parties from using this idea. Therefore, the duration of protection can be much longer than in the case of the protection of ideas.[123] Therefore, if an inventor is entitled to protection under both copyright and patent laws, the inventor would take advantage of the longer duration of copyright. This situation is equal to extending patent protection beyond its statutory term; it is an illegal extension of the patent grant.
Some opponents might argue that there is no statement in the Constitution and federal statutory law providing that patent and copyright protection must be an either/or protection. However, this argument is not appropriate because even though there is no such statement, the Constitution and federal statutory law should be enforced pursuant to their purposes as mentioned above.
Like in the United States, the Thai copyright law should not allow copyright protection to the methodology, or processes adopted by programmers because the purposes of Thai copyright and patent laws are similar to the U.S. laws. Similarly, the purpose of the Thai copyright law is to encourage people to create independently their own literary and artistic works (originality) without copying. The Thai copyright law protects only the manifestation of an idea, not an idea itself. On the other hand, Thai patent law protects ideas, method, and process. Like the U.S. copyright law, the second work, is eligible for Thai copyright subject matter as long as the author uses his skill, effort, and labor to create his work even if it is not new. Therefore, the Thai copyright law does not require novelty, unlike the Thai patent law. Allowing copyright protection to the methodology or processes would not be reasonable for the same reasons as under the U.S. theme.
C. Fixation Requirement
Section 102(a) of the U.S. Copyright Act should be changed to eliminate the fixation requirement for four main reasons. First, the U.S. Constitution provides only that Congress may grant exclusive rights in writings, regardless of whether those writings are fixed in a tangible medium. Second, even though Congress sought to resolve problems of new types of technology, such as live broadcasts through section 101, it is still not fair for authors. Third, requiring fixation encourages making copies of others’ works or copyright infringement. Finally, the elimination of the fixation requirement in the U.S. would encourage creating new works via the internet, and would benefit the public.
First, the Constitution provides only that Congress may grant exclusive rights in writings, regardless of whether those writings are fixed in a tangible medium. Therefore, works that are not fixed in a tangible medium should qualify as writings. More importantly, Congress should not exclude those works because requiring the fixation is not in the Constitution’s purpose. Furthermore, there is no policy reason that provides that the fixation requirement is a condition of copyright protection.
Second, even though Congress sought to resolve the status of live broadcasts through section 101, it is still not fair for authors if their creative live performances do not qualify as copyrightable subject matters because they do not fix their works by themselves into a tangible medium, or if the works are not fixed under their authority. Under section 101, the fixation requirement is not met unless the work is fixed by or under the authority of its author. Therefore, improvised live performance is not protected by copyright law, such as extemporaneous lecture, reciting a poem to a live audience, and improvising jazz in front of them; authors do not fix their works during the performance, or the authors have no control on recording their work by someone in the audience without the authors’ consent.
There will be a problem of fairness, such as when an author recites his poem extemporaneously. Someone may recite his extemporaneous poem perfectly, and then write the poem on his book. The second person who copies after the author recites will profit from his published books without copyright infringement. Similarly, an author may create a song and play it in a restaurant while someone may record the same song. The second person will profit on the album simply by recording. These situations are inconsistent with the purpose of copyright law. It encourages people to create works through copying, and thus ultimately violate the copyright law.
Third, even if an author of a live performance receives copyright protection, he will obtain copyright protection only against an audience’s subsequent copying. He has no copyright protection against an authorized simultaneous recording. Therefore, this amended section 101 does not prevent copyright infringement but encourage people to make copies instead.
Finally, due to the rapid growth of technology, there are a lot of works that might be questionable whether they are fixed in a tangible medium, such as a web site, e-mail, and on-line chat. According to section 101, those creative works do not qualify for copyright subject matter. For instance, transmission via the Internet would not be sufficiently fixed unless the work had already been copied onto a fixed medium or was being copied at the same time it is being transmitted. The elimination of the fixation requirement in the U.S. would encourage creating new works via the internet and the free flow of information. The public, as a result, would receive more information.
Consequently, the United States should follow the approach of other countries, such as Belgium, France, Brazil, Italy, Germany, and Thailand and accord copyright protection as soon as a work is in a form in which others can perceive it, regardless of whether it is also fixed in a tangible medium. Such works might include, for example, improvisational performances.
D. Non-illegal and Immoral Work Requirement
Thailand should clearly provide in the Thai Copyright Act B.E. 2537 that the non-illegal requirement is also a copyrightable subject matter requirement. There are two main reasons why Thailand should provide a non-illegal requirement. First, it can be implied in Case No. 3705/2530 that an illegal work cannot be a copyrightable subject matter in Thailand. Second, criminal policy should overcome copyright policy in the case of an illegal work.
First, as mentioned above, even though the Thai Copyright Act B.E. 2537 and the previous statute do not clearly provide whether an illegal work can be a copyrightable subject matter, it can be implied, according to the court in Case No. 3705/2530,[124] that an illegal work cannot be a copyrightable subject matter in Thailand. Thailand, thus, has an implied non-illegal requirement.
In addition to Case No. 3705/2530,[125] which assures that Thailand has a non-illegal requirement, Thai legal policies also show that Thailand should have a non-illegal requirement. The issue of the legal or illegal work is relevant to criminal law.[126] Consequently, whether Thailand should have a non-illegal requirement should depend on both copyright and criminal policies.
The purpose of copyright law is to stimulate the creation of as many works of authorship as possible to benefit the public. Criminal law governs the standard of conduct what conduct is criminal, and prescribes punishment to be imposed for criminal conduct. Therefore, the purpose of criminal law is to prevent harm to society. Both the copyright and criminal policies should be examined together, and balanced to determine what the policy should be in case of an illegal work.
Here, the criminal policy should defeat the copyright policy because safety to society is more important than benefit to the public. More importantly, the public should first be served under the criminal policy and before the copyright policy. For instance, granting copyright protection to a movie that depicts children in a sexually explicit manner might be a way to encourage people to commit crime to children and sexual abuse. Therefore, even if the movie meets the other subject matter requirements (the originality, idea/ expression, and fixation) copyright law should not allow copyright protection to this illegal movie. Granting copyright protection to the illegal movie is equal to encouraging people to commit a crime. As a result, Thailand should have a non-illegal requirement.
Like in Thailand, the U.S. Copyright Act of 1976 should be amended and provide a non-illegal requirement because both countries have similar copyright and criminal policies.
Moreover, the statute should address that a whole illegal work, not only an illegal part, is not protected by Thai and U.S. copyright laws to prevent harm to society. In fact, copyright law should not protect the legal part of the work if any part of the work is illegal, even if it meets all the subject matter requirements.
Some people might argue that copyright and criminal laws should be considered separately; therefore, even though a work is illegal under criminal law, the work might qualify under the copyright subject matter. Every law, however, should be considered to provide the best benefit to society.
As Thailand should have a non-illegal work requirement, the Thai Copyright Act B.E. 2537 should clearly provide that a non-illegal work is a subject matter requirement. Even if there is precedent, Case No. 3705/2530, the statute should explicitly provide that a non-illegal work is one of the subject matter requirements because. Thailand is a civil law country. Thai laws rely mainly on the Constitution and statutes themselves, not Thai cases. Moreover, for uniformity in the Thai copyright law, the Thai statute should clearly state that a non-illegal work is a subject matter requirement.
On the other hand, the Thai statute should not have a moral work requirement. Case No. 3705/2530 implies that an illegal work cannot be copyrightable subject matter, but the court did not state whether an immoral work can be a copyrightable subject matter. Due to this inconsistency in Thailand, the Thai government should amend the Thai statute and clearly address this issue.
Like in Thailand, the United States should not have a moral work requirement. There are two important factors why Thailand and the United States should not have a moral work requirement.
First, it is hard to define what a moral and immoral work is. In both countries, especially in the United States, there are a lot of nationalities, so there are a lot of competing cultures and values. The more cultures there are, the more difficult it is to frame the definition of moral and immoral works because people in each culture will have their own definitions. For example, an average person in Bangkok, the capital city of Thailand, will have more opportunity to interact with and adopt foreign cultures because they are in contact with more foreigners than the average person in other provinces. Therefore, on the average person in other provinces might decide that a critical journal is an immoral work because an author should not criticize in such a way; in contrast, a Bangkok resident might not see the work as immoral because everyone has freedom of speech. In the United States, in addition to the First Amendment, which protects the freedom of speech, U.S. citizens believe that they have a strong freedom of speech. Therefore, defining what constitutes a moral or immoral work is difficult.
Second, the difficulty in defining what is moral and immoral will be affected by the difference of ages. Adults might, consequently, decide that some works are immoral; on the contrary, teenagers might see the same works as moral.
Due to the variety of culture and age in both countries, there is no certainty to decide whether a work is moral or immoral. Therefore, both countries should not have a moral work requirement.
VI. Conclusion
To seek the best benefit to the general public, copyright law needs to balance two public policy goals which normally would conflict with each other. First, the law should provide an incentive to create copyrightable subject matters by giving authors exclusive rights. Second, it should provide the greatest possible public access to the works to promote a competitive marketplace. In case of subject matter requirement, copyright law, thus, should consider how to impose the subject matter requirements while also encouraging authors to create many works without fear that their works would not meet all the subject matter requirements. At the same time, copyright law should consider how to impose the subject matter requirements to preclude some works from copyright protection to allow public access those works without the creators’ consent.
To determine what subject matter requirements should be would be different from country to country based on a lot of factors, such as copyright policy and other areas of legal policies like criminal law. Culture and fairness should be considered. For instance, even though Thailand is a developing country, and would normally follow the U.S. court’s decision/judgment, the leader of copyright law, Thailand has its own legal system so the Thai government should consider Thai legal policies as a fundamental factor, instead of simply copying the U.S. Copyright Act of 1976 or U.S. copyright policies.
Moreover, Thailand should also realize its primary policy, all previous copyright law and judges’ opinion, especially in the Supreme Court where this issue might have been already addressed. Therefore, even though in the future there will be a lot of new changes in the nature of creative works, every country will be able to effectively enact copyright law.
[1] 17 U.S.C. § 102(a) provides as follows
“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.”
[2] 17 U.S.C. § 101 (1976).
[3] Id.
[4] White-Smith Publishing Co. v. Apollo Co. 209 U.S. 1 (1908).
[5] H.R. Rep. No. 94-1478 Section-by-section Analysis of the Copyright Act of 1976, http//www.digital-law-online.info (accessed April 4, 2005).
[6] 209 U.S. 1.
[7] Id.
[8] Julie E. Cohen, Lydia Pallas Loren, Ruth Gana Okediji & Naureen A. O’Rourke, Copyright in a Global Information Economy 75 (2002).
[9] Id.
[10] 17 U.S.C. § 4 (1909).
[11] A recurring question (under the 1909 Act) has been whether the statutory and the constitutional provisions are coextensive. If so, the courts would be faced with the alternative of holding copyrightable something that Congress clearly did not intend to protect, or of holding constitutionally incapable of copyright something that Congress might one day want to protect. To avoid these equally undesirable results, the courts have indicated that “all the writings of an author” under the 1990 Act is narrower in scope than the “writings” of “authors” referred to in the Constitution. The bill avoids this dilemma by using a different phrase – “original works of authorship” – in characterizing the general subject matter of statutory copyright protection. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 51 (1976), reprinted in 1976 U.S.C.- C.A.N. 5659,5664.
[12] Supra n. 5.
[13] Id.; see also Dan L. Burk, Patenting Speech, 79 Tex. L. Rev. 99, 153 (2000).
[14] Cohen, supra n. 8.
[15] Id.
[16] H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 57 (1976), reprinted in 1976 U.S.C.-C.A.N. 5659, 5670.
[17] Section 102(b) provide that “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
[18] R.S. is the abbreviation of Rattanakosinsok (Rattanakosin Era) which started from the founding of Bangkok in A.D.1781 or B.E.2324. It is no longer in use.
[19] Weerawit Weeraworawit, Copyright in Thailand: The Intellectual Property
and International Trade Law Forum 1 (The Central Intellectual
Property and International Trade Court 2003).
[20] Id.
[21] Id.
[22] Jaran Pakdeethanakul, Intellectual Property Law 19 (Nititum 1980).
[23] Arapan Panaspattana, Intellectual Property Law 38 (Nititum 2004).
[24] Thailand was on the priority watch list for action under Special 301 of the Tariff Act for several years.
[25] Chaiyos Hemalatchata, Intellectual Property Law 28 (Nititum 2002); see also Jakrit Koawpot, et al., Intellectual Property Law 174 (Sukothaithummathirat 2003).
[26] Pakdeethanakul, supra n. 22.
[27] Hemalatchata, supra n. 25 at 29.
[28] Section 4 provides that “Creator means a person who makes or creates a work which is a copyrighted work under this Act;” Section 6 paragraph 1of the Thai Copyright Act B.E.2537 provide “Copyright works by virtue of this Act mean works of authorship in the categories of literary, dramatic, artistic, musical, audiovisual, cinematographic, sound recording, sound and video broadcasting work or any other works in the literary, scientific or artistic domain, whatever may be the mode or form of its expression.”
[29] Section 6 paragraph 2 of the Thai copyright Act B.E. 2537 provides that “Copyright protection shall not extend to any idea or procedure, process or system or method of use or operation or concept, principle, discovery or scientific or mathematical theory.”
[30] 17 U.S.C. § 102(a) (1976).
[31] Cohen, supra n. 8 at 83.
[32] Id. at 76.
[33] Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345-346 (1991).
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).
[40] Id.
[41] Chromolithographs are pictures printed in colors from a series of lithographic stones or plates.
[42] Bleistein, 188 U.S. 239.
[43] Id.
[44] Id.
[45] Id.
[46] Section 103 provides that derivative works are within the subject matter of copyright. Section 101 defines a derivative work as a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, are reproduction, abridgment, condensation, or any other form in which a work may by recast, transformed, or adapted.
[47] Italian Book Co. v. Rossi, 27 F.2d 1014 (1928).
[48] Id.
[49] Id.
[50] Douglas Y'Barbo, The Heart of the Matter: The Property Right Conferred by Copyright, 49 Mercer L. Rev. 643, 665-66 (1998).
[51] Margreth Barrett, Intellectual Property 89 (Aspen 2004).
[52] Id.
[53] Id.
[54] 37 C.F.R. § 202 (1) (a) (1998).
[55] Barrett, supra n. 51.
[56] 17 U.S.C. § 102(a) (1976).
[57] Copyright Act, B.E. 2537 § 4, § 6 ¶1 (1994) (Thail.).
[58] Chaiyos Hemalatchata, Intellectual Property Law 32 (Nititum 2002).
[59] Section 5 of the Thai Patent Act B.E. 2522 provides that “Subject to Section 9, a patent may be granted only for an invention in respect of which the following conditions are satisfied:
(1) the invention is new…”
Section 6 of the Thai Patent Act B.E. 2522 provides that “An invention is new if it does not form part of the state of the art
The state of art also includes any of the following inventions:
(1) an invention which was widely known or used by others in the country before the date of application for the patent…”
[60] Case No. 2750/2537 (S.Ct. 1994) (Thail.).
[61] Id.
[62] Id.
[63] Section 12 provides that copyright in the work which is a compilation or a composition of copyright works by virtue of this Act done with the consent of the owners of copyright or a compilation or a composition of data or the materials which are readable, or conveyable by a machine or other apparatus vests in the person who makes the compilation or the composition; provided that he has done so by means of selection or arrangement in the manner which is not an imitation of the work of another person but without prejudice to the owners of copyright in the works or data or other materials, created by the original authors, which are complied or composed.
[64] Id.
[65] Arapan Panaspattana, Intellectual Property Law 38 (Nititum 2004).
[66] Section 4 provides that “adaptation means a reproduction by transformation, improvement, modification or emulation of the original work for the significant part without a manner of creating a new work wether in while or in part; ...”
Section 15 provides that “subject to Section 9, Section 10 and Section 14, the owner of copyright has the exclusive rights of: (1) reproduction or adaptation; …”
[67] Jakrit Koawpot, et al., Intellectual Property Law 174 (Sukothaithummathirat 2003); see also Jaran Pakdeethanakul, Intellectual Property Law 26 Nititum 1980).
[68] Case No. 848/2519 (S.Ct.1977) (Thail.).
[69] Id.
[70] Id.
[71] Section 12. Copyright in the work which is a compilation or a composition of copyright works by virtue of this Act done with the consent of the owners of copyright or a compilation or a composition of data or the materials which are readable, or conveyable by a machine or other apparatus vests in the person who makes the compilation or the composition; provided that he has done so by means of selection or arrangement in the manner which is not an imitation of the work of another person but without prejudice to the owners of copyright in the works or data or other materials, created by the original authors, which are complied or composed.
[72] Copyright Act, B.E. 2537 § 6 (1994) (Thail.).
[73] Case No. 848/2519 (S.Ct. 1976) (Thail.).
[74] See infra pt. V (A).
[75] Jessica Litman, Revising Copyright Law for the Information Age, 75 Or. L. Rev. 19 (1996).
[76] Nichols v. Universal Pictures Corp., 45 F.2d 119 (1930).
[77] Id.
[78] Id.
[79] Id.
[80] Baker v. Selden, 101 U.S. 99 (1879).
[81] Id.
[82] Id.
[83] Id.
[84] Id.
[85] Cohen, supra n. 8. at 94.
[86] Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir.1967).
[87] H.R. Rep. No. 94-1478 Section-by-section Analysis of the Copyright Act of 1976, http//www.digital-law-online.info (accessed April 4, 2005).
[88] Copyright Act, B.E. 2537 § 6 ¶ 2 (1994).
[89] Case No. 7036/2543 (S.Ct. 2000) (Thail.).
[90] Id.
[91] Id.
[92] Id.
[93] Id.
[94] Case No. 1908/2546 (S.Ct. 2003) (Thail.).
[95] Id.
[96] Id.
[97] Id.
[98] Kittisak Prokkati, The Thai Copyright Protection 15 (Nititum Publisher 1992).
[99] Chaiyos Hemalatchata, Intellectual Property Series 35 (2d ed., Nititum Publisher 2002).
[100] See infra pt. V (B).
[101] See infra pt. V (B).
[102] Id.
[103] 17 U.S.C. § 102(a) (1976).
[104] MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
[105] Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir. 1982).
[106] See 17 U.S.C. § 101 (1976).
[107] Id.
[108] Id.
[109] See 17 U.S.C. § 301 (1976).
[110] Margreth Barrett, Intellectual Property 91 (Aspen 2004).
[111] See Berne Conv., art. 2(2) (1886).
[112] Case No. 3705/2530 (S.Ct. 1987) (Thail.).
[113] Id.
[114] U. S. Const. art. 1, § 8, cl. 8 (1790).
[115] Mitchell Bros. Film Group v. Cinema Adult Theater, 445 U.S. 917 (1979).
[116] Article 2(2) of the Berne Convention leaves the decision about whether to require fixation to each of the member countries, and neither the WIPO Copyright Treaty nor the TRIPs Agreement mentions fixation.
[117] Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (1983).
[118] Id.
[119] See 35 U.S.C. § 102.
[120] Id.
[121] In 1980, the U.S. copyright laws were amended to make explicit that computer programs, to the extent they embody an author's original creation, are proper subject matter of copyright.
[122] See 35 U.S.C. § 154.
[123] See 17 U.S.C. § 301-305.
[124] Case No. 3705/2530 (S.Ct. 1987) (Thail.).
[125] Id.
[126] According to the Thai Criminal Act B.E. 2499 section 287, whoever (1) for the purpose of commerce, distribution or performance to people, creates, occupies, imports a document, painting, advertisement, symbol, photograph, movie, recording film, recording tape or video which is obscene to Thailand or exports those works from Thailand (2) rent out those works…violates Thai criminal law.