Ronald Cass writes for the WSJ chastising Democrats who wrote to object to Thailand's placement on the priority Watch List for intellectual property violations.

I met last month with two Thai IP enforcement officers on a tour of the United States. Their

account of the actual operation of IP law in Thailand makes some sense of the extent and nature of problems with enforcement there, at least on the copyright side. Here I describe the gist of their remarks:

Thailand has a civil law system, and its intellectual property law (only a few years old) is modeled after Western systems. The law looks fine on paper. But, perhaps in an effort to simplify, perhaps for some other reason, there were some key omissions and alterations. 1) The law made no provision for collecting rights societies to coordinate the use and payment of the complicated and fragmented rights in music. The hope was that the private sector would sort this out on their own, but because copyrights are not registered, this has not happened. Would-be licensees and licensors cannot identify and find one another. 2) The parties to a license often do not understand the terms; for example, a licensor may issue an exclusive license to more than one licensee. 3) Most peculiar of all, in Thailand, a private plaintiff may bring a complaint to the police and initiate the prosecution of a criminal suit! The law also allows civil suits--but to bring a civil suit, a plaintiff must bear his own expenses for investigation and prosecution. Whereas if he pressures the police to enforce on the criminal side, it is free (though he is expected to pay for expenses such as meals while the police are active on his case)! Therefore, almost all copyright prosecution in Thailand is criminal, not civil!

The result: Firms that produce copyrighted works do not enforce their copyrights themselves. Instead, they sell their rights to "arrest" infringers to enforcement groups. The enforcers then present themselves to alleged infringers and secure a stream of income from them, under threat of exercising the right of arrest.

Technically, as a matter of law, the burden of proof for infringement is on the plaintiff. But alleged infringers such as restaurants are so terrified of being arrested, having their computers seized, and so on, that they tend to offer large sums of cash to the enforcers to make the latter go away, without the enforcer having confirmed that he is in fact a copyright owner or the agent of an owner or that there is any evidence of infringement. So a restaurant owner might be confronted by someone on a daily or weekly basis, claiming to be a copyright owner, threatening him with arrest, and extorting large sums of money from him.

I am curious if others with access to information about the operation of copyright in Thailand are able to confirm this cautionary tale.

Having said all this, Thailand still deserves censure for its policies concerning patents on medicine. It seems, however, that the adoption of IP law by developing countries is something with which they are going to need a good bit of advice going forward. The development of a "model" copyright regime might be worth some effort.

By now Western experts are familiar with the Rule of Law problem--the difficulty developing nations face in implementing the letter of the law in the face of corruption, a lack of respect for property rights, limited infrastructure, and a neutral judicial system. The problem in Thailand is at an event more elemental level--unwilling to copy Western legal regimes word for word, which would introduce baffling complexity--legislators inadvertantly set up perverse incentives and end up worse off. This cannot be good for the credibility of Western institutions.

posted by Solveig Singleton @ 9:50 AM | International

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