Protecting Intellectual Property Rights in Thailand’s Digital Economy
The advent of the global digital economy is the result of increasing technological innovation, the evolution of distribution platforms, and the continuing expansion and growth of the online world. The Government of Thailand has begun to recognize the importance of implementing and protecting its digital infrastructure. In March 2016, Prime Minister General Prayut Chan- o- cha remarked to a visiting delegation from the U. S.- ASEAN Business Council that “the Digital Economy will be an important step in the modernization of the Thai economy” and that the legislature is currently “drafting the new Digital Economy development plan for 2016- 2020.” The Prime Minister went on to recognize the importance of the protection of intellectual property rights as a spur for innovation and development of digital industry.
Thailand is increasingly focused on making progress in this area, evidenced by the draft bills proposed by the Ministry of Information and Communication Technology to the National Legislative Assembly concerning the digital economy, as well as its plans to establish a national digital infrastructure fund and to construct national data centers. Thailand is already in the midst of the construction of a national broadband network that aims to connect the whole country by mid2017. Moreover, in an effort to reboot the tech economy, Thailand recently waived income and dividend taxes on venture capital firms for the next ten years, while the Ministry of Science and Technology simultaneously launched a Baht 500 million fund for Thai startups. In addition, a draft Digital Economy Development Plan for Economy and Society is an action plan designed to establish an efficient digital infrastructure nation- wide, supporting and benefiting a variety of industry sectors. The National Legislative Assembly recently approved an expansion and re- naming of the Ministry of Information and Communication Technology to be the Ministry of Digital Economy and Society, which will have the administrative scope to plan, promote, develop and implement activities related to digital society and the economy, indicating a new focus on the digital economy by the Thai Government. This effort follows the actions of other ASEAN Economic Community ( AEC) members. For example, Indonesia in early 2016 announced an e- Commerce Roadmap, aiming to become ASEAN’S largest digital economy by 2020.
It is critical for U. S. stakeholders that this digital reform be based in the protection of intellectual property rights ( IPR). Thailand’s continued placement on the annual Office of the U. S. Trade Representative Special 301 Report Priority Watch List reflects concerns with respect to IPR protection, enforcement, and market access for IP- intensive industries. This article will briefly outline Thailand’s IP legislation and examine how enforcement can be updated to meet the challenges and trends of the digital economy.
IP LEGISLATIVE TRENDS
Copyright- intensive industries struggle internationally to maintain effective IPR protection in the digital era. In particular, the television, film and broadcast industry faces a range of challenges to combat content infringement in a digital environment. The Motion Picture Association of America ( MPAA) estimates that content piracy amounts to more than USD 20.5 billion annually in the United States alone, and satellite broadcasters struggle with illegal streaming in cyberspace. Piracy websites act as a search engine for infringing content and avoid liability because the links provided are embedded from secondary websites that host the content on an entirely separate server. If the material is taken down, a piracy search engine can provide a new link to a different secondary host site. Decryption of satellite television broadcasting also remains a critical issue as illegal decoder boxes are relatively easy to obtain.
The World Intellectual Property Organization ( WIPO) Internet Treaties of 1996, comprised of the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty, are the global underpinnings of a digital economy and the impetus for comprehensive digital IP protection legislation such as the U. S. Digital Millennium Copyright Act and the EU Electronic Commerce Directive and Copyright Directive. The United States has long encouraged Thailand to update its copyright regime to address the challenges to digital copyright protection by acceding to and implementing the WIPO Internet Treaties, which would provide a solid legal underpinning to protect content in the digital environment. Further, as more content moves to online streaming platforms, content owners and broadcasters have turned to the National Broadcasting and Telecommunications Commission ( NBTC). Established in 2010 to regulate licensing protections and the liberalization of the satellite market, the NBTC has the authority to revoke licenses for stations broadcasting pirated cable or satellite content, but rarely exercises this power.
In April 2016, the National Legislative Assembly passed amendments to Thailand’s 1991 Trademark Act, which will provide an opportunity for Thailand to finally accede to the 1989 Madrid Agreement Concerning the International Registration of Marks (“Madrid Protocol”) by the end of the year. Acceding to the Madrid Protocol is a critical step in modernizing Thai trademark practice, particularly as the country considers joining the Trans- Pacific Partnership Agreement, which requires accession to either the Madrid Protocol or the Singapore Treaty on the Law of Trademarks.
While Thailand’s Trade Secrets Act enunciates the rights of trade secret owners and protects the commercial value of such trade secrets in several ways, the language concerning the digital accessing of trade secrets, such as by the disclosure or misappropriation of trade secrets via unauthorized access of a computer system, has yet to be implemented.
Finally, the most pressing issue facing the patent system in Thailand is the mounting backlog of applications resulting in an extremely long pendency for the granting of patents. Such excessive backlogs and delays in the administrative examination process stagnate innovation at a time of a rapidly evolving tech market. In January 2016, the Thai Department of Intellectual Property announced that it will be reviewing prospective amendments to the Patent Act with the goal of reducing the lengthy examination process and backlogs, and in May 2016, the Cabinet approved giving the Department additional human resources to allow for an increase in its examining and IT support staff.
CYBERSECURITY AND THE INTERNET OF THINGS ( IOT)
Cybersecurity and the Internet of Things ( IOT) are major trends in ASEAN and glob- al digital economies. Wearable devices, home security systems, entertainment systems, automobiles and even common household appliances are trending in an interactive digital direction, and it is estimated that the IOT will add US$ 10- 15 trillion to global GDP in the next 20 years.
A multitude of digital devices now capture data using sensors, and both consumers and businesses can subsequently analyze and make decisions based on the data collected. Increased use of advanced surveillance cameras and facial recognition software can be incorporated into industries ranging from commercial retail establishments to critical government and homeland security infrastructure. Urban markets in particular are evolving into the “Smart City” realm, and the protection of IPR, in particular tech patents, will be an increasingly important arena for transnational investors. Thailand is beginning to implement a regulatory framework beneficial to such an environment, and it will be critical for U. S. investors to monitor progress in the IOT field.
Thailand is the world’s number two target for cybercrime, and international businesses are gradually employing strengthened IT security measures as well as cyber insurance policies. In 2015, 4% of cybercrime victims in Thailand reported losses of between USD 1 million and USD 100 million. Intellectual property theft and misappropriation are among the risks that businesses face in the constantly evolving cyber sphere. While big data technology allows for a more complex analysis of the risks that modern companies face, IT challenges remain for businesses to implement truly effective security measures. The announced intention of at least one of the eight draft bills comprising Thailand’s Digital Economy Plan is to establish a National Cybersecurity Committee, which may be a step in the right direction in providing clear leadership on this issue.
While Thailand has made strides recently in promoting and developing a plan for its digital economy as a stimulus for both domestic and foreign investment, and has reiterated its plans for implementing a regulatory digital framework conducive to economic growth, in regards to IPR protection, effective protection and enforcement is an ambitious objective that will require increased interagency coordination to achieve. Civil litigation is rarely a viable or worthwhile option, and an over reliance on criminal enforcement has not proven effective in creating a deterrent environment. Hopefully, recent amendments to Thai IP and digital economy legislation will increase the transparency, efficiency, and ultimately the protection of creative content and technological innovation that U. S. investors seek. The new Ministry of Digital Economy and Society will be an intriguing case study to see how the nation continues to improve, advance, and prepare for the widespread economic overhaul that the globalization of the digital era will both propel and require if Thailand wishes to succeed in creating a truly effective digital economy.
Peter N. Fowler is the United States Patent and Trademark Office Regional Intellectual Property Attaché for Southeast Asia, and Julius Bodie is a third year law student at Loyola University of Los Angeles School of Law. Peter can be contacted at Peter. Fowler@ trade. gov.