Date of Award

Spring 2006

Degree Type

Dissertation

Degree Name

Doctor of Law (SJD)

Department

Law

First Advisor

Sompong Sucharitkul

Second Advisor

Christian Okeke

Third Advisor

Jon Sylvester

Abstract

Over the past twenty years, the Kingdom of Thailand's role in international trade has considerably increased. Concurrently, Thailand has been rapidly absorbing and utilizing advanced technology from the developed countries. Along with these favorable consequences, have come concerns regarding intellectual property protection. In fact, intellectual property matters have become one of the focal concerns for the United States, Thailand's most important trading partner. The United States has proclaimed that, to compete with other players in the world, Thailand must develop a sound copyright law reform to sustain its socio-economic development.

The fact that international copyright norms have been evolving may seriously complicate the determination of the extent of copyright protection in any given case. Those norms are not truly universal. Some countries abide by the latest treaty standards, while others adhere only to the lower standards of previous treaty texts or reserve certain rights permitted by the treaties. Therefore, foreign copyright owners must pay particular attention to the copyright law of the forum state where they are claiming copyrights.

Whether a private right, assertable in court, can be derived directly from a copyright or neighboring rights treaty, depends in each case on the nature of the treaty and the constitutional law traditions of the country concerned with protecting its copyrights. Some countries view treaties as self-executing; i.e., a directly applicable source of rights to private parties. In contrast, other countries hold that treaties are not self-executing; consequently, private actions must be founded on domestic legislation that implements the treaty.

One of most interesting topics is the anti-circumvention of technological measures for protecting copyrighted works. The legal issue of this topic is currently vi dealt with by the WIPO Copyright Treaties and the WIPO Performances and Phonograms Treaty. Circumvention of technological measures creates a precarious atmosphere for both owners and users of copyrighted works because it can hinder the legitimate use of copyrighted works from the users under "the exception of copyright" doctrine especially when those works are in digital form. Legal machinery is important for the copyright community in its effort to balance individual rights and public good. The author will discuss the comprehensive and systemized legal protection of the United States copyright law as it protects technologies that control access of copyrighted works, and present it as a viable example, which Thailand may or may not consider incorporating into its legal framework.

This dissertation primarily surveys the law of copyright of the United States of America and the Kingdom of Thailand; however, the copyright laws of other countries are also examined as appropriate. Throughout the dissertation, the author presumes that the trend towards greater international protection of copyright will continue. There should, however, be a search for ways and means to improve the developmental process in developing countries while providing, at the same time, the sustainability of a sound international copyright protection system. The author argues that a few relatively modest and realistically implementable changes to international copyright law could help address some of the legitimate concerns of copyright critics while preserving the basic structure of domestic laws, which copyright proponents argue have well served many of the world's peoples. Thus far, there are no signs that between developed and developing countries the battle on the issue of copyright protection is over.

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