Three Ages of Incertitude – Thailand’s Struggles to Protect Translation Rights for Foreign Literary Works

EPISODE 1

The First Age (1931 – 1978): Quietly Opening the Floodgates

Thailand acceded to the Berne Convention in 1931 – the 36th country to have done so in history. In the same year, the first international-style Copyright Law was enacted. Nine decades on, that first incarnation of the Berne principles has undergone immense transformations, and each milestone of this long evolution highlights severe difficulties in balancing national interests against the interests of foreign copyright holders.

In this series, we shall explore Thai law’s treatment of translation rights for foreign literary works in three periods, each corresponding to promulgation of a new legislation on copyright protection, as follows:

1.   1931 – 1978: Protection of Literary and Artistic Works Act B.E. 2474 (A.D. 1931)
2.   1978 – 1994: Copyright Act B.E. 2521 (A.D. 1978), as Supplemented by the Royal Decree Establishing Conditions for Protection of Foreign Copyright B.E. 2526 (A.D. 1983)
3.   1994 – Present: Copyright Act B.E. 2537 (B.E. 1994)

Thailand’s accession to the Berne Convention in 1931 (encompassing the Paris Additional Act 1896, the Berlin Act 1908 and the Additional Protocol 1914) was remarkably qualified by a reservation replacing Article 8 of the berlin Act with Article 5 of the Berne Convention, 1886, as modified by Article 1, Number III, of the Paris Additional Act, 1896, in respect of the exclusive right of authors to make or to authorize the translation of their works – a reservation which has been renewed most recently in 2014, effective until 2024. This fact may be alarming, but Thailand only availed itself of such reservation fully between 1931 and 1978. During this time, the Protection of Literary and Artistic Works Act B.E. 2474 (A.D. 1931) was enacted with a provision granting copyright protection in relation to literary or artistic works created in other Union countries, but the related translation rights were curbed by Section 29 (B), which closely followed the text of the 1896 Paris Additional Act’s Article 1, Number III, as shown below:

Paris Additional Act 1896 Protection of Literary and Artistic Works Act B.E. 2474 (A.D. 1931)
III. – Article 5. The first paragraph of Article 5 shall be as follows:

“Authors who are nationals of one of the Union countries, or their heirs enjoy, in all other Union countries, the exclusive right to make or authorize translation of their works through the duration of their rights in the original works. However, the exclusive right of translation shall cease to exist if the author does not exercise the same within ten years from the first publication of the original work by publishing or causing to be published, in one of the Union countries a translation in a language in which protection is to be claimed.”

Section 29

(B) If the subject work is a work of literature or performing arts, when a delay of ten years has passed from the last day of the year in which first publication of the work took place, the right to prevent others from creating, copying, performing in public, or publishing translations of the work could only continue to exist if the copyright owner has engaged another to create a translation of the subject work in the language in which protection is to be claimed and has published such translation within the Kingdom before the completion of the aforesaid delay.

The Thai government’s decision to opt for this reservation was most likely motivated by public policy concerns. In 1931, Thailand’s century-long goal of modernization had not been fully realized, and the best means of speeding up progress was to induce a sensibility towards foreign ideas amongst the local population. As most Thais at the time were not acquainted with foreign languages, the only way we could understand foreign ideas was through translations of foreign literary works.

With time limits imposed on the rights of foreign copyright holders to create Thai translations of their works, Thai publishers needed only wait ten years after a foreign work is published before they could commission a Thai translation thereof without having to obtain permission from the original author. The result was that significant works of literature, from Agatha Christie’s Hercule Poirot series to Albert Camus’ L’Étranger, were translated into Thai under the auspicious exception of Section 29 (B). The translations were printed, sold, and became widely popular in Thailand – all despite the fact that no permission was sought from the original authors. In short time, this legal framework opened up a great flux of ideas into Thai minds, albeit at the expense of foreign authors’ rights.

Dichotomously, Section 29 (B) of the Protection of Literary and Artistic Works Act was an attempt at placing Thais on equal intellectual footing as the rest of the world, but it also significantly weakened the country’s claim to have a globally responsible copyright protection system.

During this period, the floodgates were quietly opened, letting into Thailand an enormous body of intellectual capital, but this influx also brought a deluge of problems in the next Age (1978 – 1994), when Thailand proved to be a Spider Caught in Its Own Web.

Please stay tuned…..

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The Authors

Saowaluck Lamlert (APPLE)

Managing Partner

Saowaluck.L@weintellectual.com

Tatchaporn Natprasertkul

Partner

Tatchaporn.N@weintellectual.com

Dhanasun Chumchuay

Senior Associate /

Relationship Specialist

Dhanasun.C@weintellectual.com

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