THE RIGHTS OVER WORKS ON SOCIAL NETWORKS AND UNFAIR LICENSING PRACTICES

Abstract

The exclusive right over the works of a creator under Thai Law has been specified in Section 15 of the Copyright Act. However, the problem of unfairness in licensing agreements impacts the creators of such works on social networks under the terms and conditions of Facebook and Instagram containing unfair terms and conditions for two issues.

(1)   Licensing agreements

(2)   Conditions after the termination of the agreement.

For a creator of works in Thailand, the problem of unfairness in a licensing agreement extremely affects creators who did not know the terms and conditions before. After reviewing all the relevant Thai laws, there is no Thai law which sufficiently contains the substantive provisions to deal with the unfair licensing agreement issue. The definition of ‘customers’ under Section 3 of the Unfair Contract Terms Act does not cover customers who do not pay the remuneration to the service provider. Even in the Customer Protection Act, the definition of the word ‘customers’ and ‘service’ do not include a service agreement without remuneration.

Thus, there are certain unsolved legal and practical problems relating to the unfair licensing agreement which can affect users. The amendment of such laws are required to resolve the problems and establish a committee to govern and control licensing agreements provided by service providers to be fair for both parties.

The new and amended sections should be included in the (i) Copyright Act, (ii) the Consumer Protection Act, and (iii) the Unfair Contract Terms Act which are not able to properly protect the creators’ rights of their works. Since claims against the service provider take a long time in court, the government needs to amend the sections in the mentioned Acts to be able to copy with this problem. Therefore, the Thai Government should enact an explicit legislation to control the terms and conditions in licensing agreements and to protect users by increasing the bargaining power of the creators of works.