MEDIA AND COPYRIGHT - THE ANSWERS
Warning: This post is long – 1,329 words to be exact – but I urge you to read it if you're working in the media, a blogger, a publisher, or in any way involved in the publishing industry and/or Thailand.
Where do I start? Let me say first that I have learned a lot in recent weeks about copyright issues in Thailand. I have spoken to make people and got many viewpoints. Some of you have shown by your posts that there is a lot of uncertainty regarding what is permitted and what is not, and perhaps this post will pose more questions than it answers. Those in the media and publishing industry, both here in Thailand and around the world, might be shocked by what I have discovered. I will add a disclaimer. Although I have attempted to gather information from authoritative sources I make no claims about its accuracy. Please don't enter into any legal action or agreements without seeking professional advice. And please don't sue me saying “I read it was okay on The Bangkok Bugle …”.
This post relates to Thailand's laws regarding copyright, specifically printed work such as that found in newspapers and magazines. The fact is that anyone in Thailand is subject to Thai laws, even if the original work comes from overseas. Thailand's copyright laws contain some unique clauses and exceptions and all publishers – and anyone who blogs is a publisher – must abide by those laws. Those same laws apply to me in the same way as the biggest publisher in the Kingdom.
In summary, to be considered an infringement the copyright owner must show a number of things. They must show the offending article is the same or substantially similar to the original without any further creative or artistic element incorporated. They must also prove the infringement conflicted with normal exploitation of that copyrighted work and must prove it was unreasonably prejudicial to those exploitation rights. Finally they must prove that damage has been caused by that infringement. If no damage can be proven then no case can be brought.
"News of the day" is an exception and is not protected by copyright. There is no clear legal definition as to what exactly "news of the day" means and I don't believe any case has even been tried where this has been used as a defence. The view I have got from one of Thailand's leading legal experts is that "news of the day" means headlines or anything which appears on the front page of a newspaper or news provider.So now back to my original question about the New York Times word-for-word translated article. Would translating that article and reproducing it in a Thai language publication be a copyright infringement?
The general feeling from experts is no, on the basis that some element of creative work (the translation) has been performed. The definite answer would be no if, say, three quarters of the story was a word-for-word translation and the Thai publisher had added its own editorial to the article. If it was a word-for-word translation in English then yes, it would be an infringement regardless of whether the original source was attributed or not.
The problem appears to be there is no clear figure on how much of the original content is permitted in the new (translated in this case) article. The experts and lawyers I have spoken to seem to think that 95 per cent may be allowed, depending on the view taken by a specific court or judge.
Even in the event that a court was to decide that word-for-word translation was a copyright infringement the question of damage is raised. And how would the New York Times prove damage was done and how much? The chances are that their story would get greater exposure from that publication in Thai so it would be extremely hard to prove any damage had been caused. So what about the damage caused by one small blogger in Thailand publishing a translated story? It's not going to be cost-effective for that overseas publisher to bring any case and the damage caused, if any, will be miniscule.
In terms of punishments for anyone found guilty of an infringement, if the offence was committed for commercial purpose the offender will be imprisoned for a term of 6 months up to 4 years or will be fined 100,000 up to 800,000 baht or both.
Now on to replies to comments made in the replies to my original post. Geomark commented that a word-for-word translation from English to Thai would be nonsense. That is true as I know all too well however rewriting something in Thai from an original English story merely adds to the creative or artistic element and appears to be less likely to be treated as an infringement, even if the same story structure and quotes are included.
Bangkokdan said "not if you quote New York Times properly with the proper reference". It doesn’t matter whether you quote a source or not in Thai law. That is not taken into account.
Matt had similar thoughts to me regarding being granted permission to use the article from the original publisher. I agree that a change of language should not matter but it does – big time. Matt was right about one thing. "I get the feeling that this is a rather big issue that is likely to have some serious repercussions for some publications". True, but not perhaps in the way either of us imagined.
David made some interesting points but again, attribution doesn’t matter. It would also appear that lifting quotes and lifting entire stories (and translating them) is acceptable in Thailand. Ivo, quite rightly, says that any journalist in the West wouldn’t be working for too long if they did this. However when your specific job duty is to rewrite stories from overseas publications (this is a fact) and when there is nothing apparently wrong under Thai law then there's nothing that can be done.
Sajal says how would you prove a Thai publication has ripped off an English one? That's pretty simple if you have the original English and Thai copy. Sajal also asks if any foreign publishers have taken action against a Thai publication for translating without permission. To the best of my knowledge, and the knowledge of legal experts I have spoken to, the answer is no. Sajal also says is it legal? Apparently yes. Is it ethical? By Western standards absolutely not but by Thai standards yes, and it's been happening for a long time.
KV says "of course it’s illegal to do such translations word-for-word without the copyright holders consent and approval." I thought the same but it would that would not appear to be the case under Thailand's laws.
News of the day also opens up a whole other debate. Assume I wanted provide translated headline news from the BBC website. As long as that story appears as headline news it would appear to be perfectly legal to translate and publish. I know one UK-based financial news organization that will charge 40,000 euros (or almost 2 million Thai baht) per year for the rights to translate 10 stories per day from their website and newspaper into Thai. It would appear that can be done for free under Thai law as it currently stands.
So what does this mean? I am honestly not sure. Under The Berne Convention, to which Thailand is a signatory, even a word-for-word translation is considered to be a copyright infringement, but could an overseas publisher take action against a Thai company under that as opposed under the laws of Thailand? The answer appears to be no – any case must happen in Thailand and be subject to Thai laws because the infringement happened here.
One thing is for certain though, and that is if more overseas publishers were aware of this apparent loophole in Thai laws they'd be lobbying to have it closed.
18 comments:
From a reader via email:
Copyright Act is here http://www.wipo.int/clea/docs_new/pdf/en/th/th001en.pdf
Section 7. The following shall not be deemed copyright works under this Act:
(1) news of the day and facts having the character of mere information, not being works
in the literary, scientific or artistic fields;
I think a NYT article with a variety of facts is not mere news of the day (breaking news alert snippets would be). The indivivudal facts contained in the article could not be copyrighted, but the assembling of the information in that particular way makes it a literary work. If it was a Thai newspaper where all you have is verbatim quotes then and strict reporting of facts.
Section 15. the owner of copyright shall have the exclusive
rights of:
(1) reproduction or adaptation;
Section 4: "Adaptation" means a reproduction by conversion, modification or emulation of an
original work for a substantial part, not creating a new work whether in whole or in part,
which
(1) with regard to literary works, includes a translation, a transformation or a collection
by means of selection and arrangement,
Section 32 provides a defence of fair use/other allowable uses. You can read through them, but only 32 (3) or (4) could be relied upon by that company. Both require acknowledgment of ownership.
(3) comment, criticism or introduction of the work with an acknowledgment of the
ownership of copyright in such work;
(4) reporting of news through mass media with an acknowledgment of the ownership of
copyright in such work;
I could be (3) if there is come commentary. If not then (4), but both require an acknowledgement I think the previous person who referred to a word-to-word translation is simply referring to a translation. If you summarised the article, you are already moved away from the substantially similar problem. If it is from paragraph 1 to the end a complete verbatim translation of a NYT news article which is not just a breaking news article and a standard NYT article, I see a case of infringement. Damage (or more accurately damages or losses) is caused as the NYT cannot license its articles in Thailand for sale.
The copyright owner should send a cease and desist letter to that company if they are verbatim translations.
Your blog is coming along nicely and hitting strength.
Although I have attempted to gather information from authoritative sources I make no claims about its accuracy
..But apparently not from the Copyright Act itself, until a reader sent it to you.
And why not stand by its accuracy, if you think it's a fair representation of the truth?
Thanks anonymous.
I did see an English version of the Copyright Act prior to the post I made, however the point I am trying to make is there is no clear indication of how the law may be interpreted. I spoke personally to four lawyers, read an English translation of the act and spoke to other publishers who have faced similar problems here.
A further point. The law is in Thai and that is the governing law. An English translation of the law is not considered the governing law, however I am confident the reference provided in the PDF is an excellent translation of the actual law. (I have checked this with my Thai colleagues).
A word-for-word translation may well be an infringement however we all know that a certain amount of rewriting is necessary to make any story (either English to Thai or Thai to English) read well. That in itself could be interpreted as being a new work. That is not clear, even under the Copyright Act.
I do stand by everything I write. My point is that anyone should take legal advice before embarking on any sort of action. I am not a lawyer, merely someone trying to provide information. If you are in a situation such as this I think you'll see for yourself how views vary depending on who you talk to, even with those who work daily in copyright infringement enforcement.
One further point.
A seminar on IP and Copyright issues highlighted a recent case where a Thai print shop was praised for allowing the reproduction of copyrighted text books by students. This was a shop close to one of Bangkok's top universities. The case was brought by the overseas publisher but the court found in favour of the print shop who were 'allowing access to important education material for a fraction of the price'.
So although this was a clear infringement of copyright under the Copyright Act it's still down to individual interpretation.
More case examples such as the one quoted above would help build up a clearer picture of how the law is applied.
That would also address the question of how people are affected - Thai and overseas publishers, Thai and overseas owners of original works.
You work for a publisher...how does it affect your firm?
Examples are always good, I agree.
Well, as I said we pay a significant sum for the exclusive rights to Thai language material from an overseas magazine. The affect on our business is that when articles have been published elsewhere it prevents us from offering that content first in Thai to our readers.
Those publishers take that content (and images in one case) for free and claim it as their own.
I know, again from personal experience, there are journalists here whose sole job is to rewrite content (translate actually, with no additional comment) from English overseas news sources into Thai. And these journalists are employed by some of the more professional and Stock Exchange-listed companies.
I cannot give examples of an overseas publisher who has taken action against Thai publisher in the case as highlighted above because, to the best of my knowledge and research, none has happened in the last four years.
I think another reason it hasn't happened is because the overseas publishers are not monitoring what's happening in Thai. There is software that scans for copyrighted content theft on the internet in English, but nothing has yet been developed that looks for specific key words or phrases from English original content and translates that into Thai. A business opportunity for someone perhaps?
Actually it's easier than that for overseas publishers. They just need to work with a local company to monitor anything that looks like it might come from their publications. We're doing that ourselves already with one of the UK's largest publishers.
Please feel free to continue this debate. I will continue to be as open and honest as I can about my own experiences.
Well, as I said we pay a significant sum for the exclusive rights to Thai language material from an overseas magazine.
You mean, you pay an overseas magazine for the right to translate their material, which is in English, into Thai?
The affect on our business is that when articles have been published elsewhere it prevents us from offering that content first in Thai to our readers.
I don't understand that...you are worried about people ripping off their English-language content, or Thai publications stealing the work you have translated into Thai?
Sorry for any confusing.
We have a license agreement with an overseas publisher, yes. It's more than just the rights to translate the content though, it's about the brand too. That brand os well known around the world and has taken something like 80 yars to establish. The agreement gives us exlusive rights to use that brand name and original global English content in Thai.
And yes, I am concerned about Thai publications stealing this same content to which my company has the exclusive rights. If our overseas publisher has an interview in English with, for example, Bill Gates, we are the only company here with the rights to use that interview in Thai. What has been happening is that Thai publications have been taking that English content, rewriting it word-for-word in Thai and claiming it as their own. That untimately damages our existing license agreement because, as I said before, we would then not be the first and only publication to have that interview in Thai.
Does that make it clearer? Just ask if you're not sure about anything I have written.
And furthermore, there are around 50 licensed magazines here in Thailand. Elle, Cosmopolitan, FHM, Arena, Top Gear, AutoBild, etc, .. they all have similar agreements to the one we have.
Re what is a copyright infringement and what is not...
1. How do you feel if a Thai company makes further use of your material - paid under your licence agreement - with a credit, if not an actual agreement? Eg I copy your story, put it my magazine, but say where it came from.
2. With no credit? Eg I copy it without any acknowledgement.
3. If I contacted your firm asking to run the same story in my Thai magazine, would you have the sole right to on-sell it to me - or would you have to give some share of the publication fee to the overseas firm as well?
If your firm has exclusive right over that product, then I guess you subscribe to the argument that a translation adds value, or might even confer ownership to some extent.
-
You have a licence agreement to take material associated with a well-known brand, and turn it into Thai for use in your own publication. Your outfit benefits (without it, you might run short of content to fill your publication), as does the parent company...they get to on-sell their product, whose value might otherwise be confined to a domestic market.
Even if you do not get a credit, you are getting first use of the material, which you bought direct from the manufacturer, so to speak.
The others are copying material which has already appeared in the public domain. Admittedly, they are not paying - but then presumably you get some benefit from publishing the material first.
Any thoughts?
Thanks for this. I will reply to these specific comments however the business of running the magazine has to come first :-)
I blog for fun and not for profit and this afternoon is turning out to be a busy one. Give me a few hours and I will reply, I promise.
My thoughts ...
If you mean making use of the original English material in ‘your Thai language magazine’ in substantially the same form as the original I would want to take action against you, regardless of whether a credit was given or not. Your use of that material amounts to theft (in my eyes) and you would have caused damage to my publication. I know I am using the word ‘substantially’ and by that I mean upwards of 95% without additional comment or commentary.
If you mean making reference to that original English story there’s nothing wrong whatsoever. I’ll use an example of where a Thai tycoon appears in a Time or Forbes list. To make mention of that is not a problem and is actually good PR but to use substantially the same story in your Thai language magazine with or without credit would get you into trouble. The same is also true where, for example, my magazine published a list of top Thai business executives. Copyright would exist on that Thai story and also on any substantially similar story. Of course, as I pointed out, there would be no problem whatsoever in making reference to that story in English or Thai publications – it happens all the time and is great PR.
I think the issue of an acknowledgment doesn’t matter when you are talking about publishing a substantially similar story to the original, just in another language.
Actually, although we have a license agreement the copyright remains with the overseas publishing company – even for our translated Thai stories. Any action has to be taken by them. Your scenario in the third point has already happened. We have twice supplied PDF copies of our stories to companies for them to use in their promotional literature. That’s the reprint side of the publishing business and can be very lucrative. The company gets benefit and so do we - financially for us. To specifically answer you point yes, we do have sole rights to sell on the material and yes, all income from any source under any publishing license agreement is subject to a royalty fee. That said, I would not see the benefit for you to publish a story that had already appeared in my magazine, but if you want to you can. I’ll charge you though. :- )
I have no problem in your magazine making mention of our story after it has been printed. That has happened too. However I would not be happy if you reprinted that story in its entirety and claimed it as your own.
You correctly summarize the situation for my company and our magazine. We do have benefits but they come at a price. In your magazine, as an example, if you want to use New York Times branded content you would have to pay for it. It’s the same for us. It would be easier (and arguably cheaper) to start a new magazine and write our own content, but we chose to license an existing brand with a global reputation. That comes at a price as you know. But the benefits are world-class journalism and a trusted and respected brand image that is already known to both readers and advertisers.
Although the original English material has appeared in the public domain as you say, it’s still protected under copyright. My issue is, and always has been, with publishers here who think it’s okay to use original English stories, translate them word-for-word (yes, some interpretation is needed) and publish them as their own. They get benefit. They get readers to read that story and they charge for their publication. If they credit the original publication (although none has so far) it makes no difference. They’re unlikely to credit our magazine because (a) we’ve not yet published that story, and (b) we’re a direct competitor for both readers and advertisers.
The frustration is that it appears that these publishers have any number of potential defences to any legal action that might be instigated.
My issue is, and always has been, with publishers here who think it’s okay to use original English stories, translate them word-for-word (yes, some interpretation is needed) and publish them as their own.
Ah...thank you. If they manage to translate a story from the original English, and publish before you have yourself - and your magazine has a licence agreement - then perhaps you need to publish and translate the stories you take sooner.
No story left on the shelf too long will be of interest to your readers.
Incidentally, how do two Thai translations for the same story end up comparing - the one done by your rival, and the one you perform yourselves?
Do firms which steal copy tend to take less care over translation/presentation and so on? They must know it's theft.
Thanks again for your comments.
Time isn't the issue although I do understand your point. But just because a publisher can buy a copy of an overseas publication, translate and republish before the company with the legal and exclusibe rights to that content in Thailand has done so doesn't make it right.
Most of the content in our own situation isn't generally time sensitive. It's as newsworthy to our readers today as it will be tomorrow and in a few months time.
We're a monthly edition of what is actually a weekly publication in English so we're in an unusual situation. That said we are one of nine local language editions of this overseas publication (with varying degrees of frequency of publishing) and none of them have the same content theft issues that we do here in Thailand.
I know it's easy for me to say this but our translations are better. Our team have specific experience, knowledge and resources that other publications don't have. The other publications have inaccuratly translated several key phrases in their stories too.
Another point, as I mentioned in the original post, is overseas publishers charge substantial sums for licensing content in local languages. The figure of 40,000 euros per year is for 10 stories a day for website only reproduction. It would be unfair to mention the name of this publication here but think UK, financial daily newspaper.
Licensing around the world is big business but it seems Thailand is one of a very few countries where copyright of original stories isn't a concern.
Interesting indeed. I don't have time to comment right now, but I have read the post, at last. Nice one.
Matt - the comments are longer than the original article for this one (which is always a good thing). You need a good 15 minutes to read and understand both bits.
I hope 'anonymous' comes back with more points. He/she was well-informed and asked some really good questions.
The interesting thing about this case is that you have two Thai versions of a story which originally appeared elsewhere in English - one, which your firm translated into Thai and published as you are entitled to do under your agreement with the overseas owner; and another, which a rival magazine published after stealing the story from the same English-language source. Your rival also translated it into Thai and published it as its own story.
Both are Thai-language stories, entities in their own right. They might differ slightly in the language used, and of course in terms of whether the outlet had the right to publish. But the thing which interests me is that, where once there was one story, now there are three...and despite copyright laws, licencing contracts and royalty fee arrangements, all three must exist to some extent as stories in their own right.
If someone came along and copied not your story but the one published by your rival, and published it widely on the net, an 'unofficial' Thai version could get wider exposure than your own. Wouldn't that be odd?
PS: When a rival steals content which you have paid for from the original source, do you complain, or leave that job to the overseas owner?
Yes. Three versions. The original one in English, the authorised one from us in Thai and the 'stolen' one also in Thai. They do all exist as entities but one is (hopefully) breaking the law. If it's not deemed to be an infringenment then there will be some serious ramification for Thai publishers and overseas publishers with licensing agreement in Thailand. There would be nothing stopping me producing an entire newspaper of translated content from say The Wall Street Journal.
You're right about the added exposure however the original author gets none of the benefit. Let's say you publish an English ebook and charge for it. I take your content, translate it and sell it myself. You get no benefit either financially or from any credit to your original publication. In reverse that's essentially what is happening here now with me.
As to the complaint, we can only advise the copyright holder overseas and it's up to them to take action. We do advise them because of the damage done to our company and publication.
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