DOI: 10.14457/tu.the.2015.439
title: Ownership of social media account and its contents in light of Thai laws

description: As general comprehension, the intellectual property is one type of propertiesas it falls into the definition of “property” pursuant to Section 138 of Civil andCommercial Code B.E. 2535, property laws of other foreign countries, courtjudgments, as well as legal experts’ opinions. Even though the copyright law isbasically stipulated for the purpose of protection of intangible things, those intangiblethings have value and can be appropriated. As similar with the intellectual propertylaw, we can consider that the social media account and the digital contents areintellectual property and also property, resulting in that they can be owned. When thesocial media account and contents are properties and become valuable, the disputesover the ownership of the account and contents can ordinarily be expected as found insome foreign cases. When it comes to either transactions or disputes involving socialmedia account and contents, as aforementioned that social media account and thedigital contents are intellectual property and also property, therefore copyright law aswell as Civil and Commercial Code B.E. 2535 govern those transactions and disputes.It is known that Instagram and Facebook endorse the terms and conditions toallow their users to have their own ownership in the account and any contentsuploaded to their websites, however, they claim their authority to access, disseminateor even allow the privilege to third individual to access on users' digital copyrightedcontents without asking for the user’s authorization. These acts seem to appear thatthe social media sites exercise the exclusive rights as joint copyright owners with useror as licensees. Even though the current Terms of Use employed by most social mediasites do not evidently claim that the ownership in the contents belong to social mediasites, (however Instagram ambiguously states in its current Terms of Use that servicecontents are owned by Instagram),1 the practice and exercise by social media sitesnowadays, by allowing the contents of one user to be distributed or exploited by otherusers, by availing users’ profile and postings through search engine websites, byinterchanging the contents between the two social media sites belonging to oneentrepreneur, are considered that those social media sites are exercising the exclusiverights as joint copyright owners or as a licensees.The objective of this research is to examine whether there are any valid legalprinciples that the social media sites could employ to exercise copyright owner’sexclusive rights with the user on social media sites. The author investigated twoapproaches which could constitute the rights for social media site to exercise theexclusive rights as a joint copyright owner or as a licensee, namely1) approaches relating with contract. The Terms of Use which force the usersto transfer or assign all rights in the contents to the social media site are studied todetermine whether they are valid and enforceable according to contract laws, with thereason that the social media sites employ these Terms of Use as excuse to exercise theexclusive rights as licensees. 2) approaches relating with copyright laws. Thai copyright legislation which isrelevant to the acquisition of copyrighted contents is studied with the supplement ofUS copyright laws to be compared with to determine whether the social media sitescould claim any provisions of copyright law to exercise the exclusive rights as jointcopyright owners or as licensees. The Terms of Use which force the users to transferor assign all rights in the contents to the social media site are also studied in terms ofcopyright law to see whether such Terms of Use could fall into assignment ofcopyright ownership or copyright license agreement.From the study, there are no provisions in copyright laws of both Thailand andU.S. which the social media sites are entitled to exercise the exclusive rights as jointcopyright owners. Furthermore, exceptions for copyright infringement as provided byThai copyright law requires the determination on whether the act conflicts with anormal exploitation of the copyright work by the owner of copyright or unreasonablyprejudices the legitimate right of the owner of copyright or not. According to U.S.Copyright law, the four factors are taken into consideration to decide whether such actdeems a fair use, mainly the act must not affect the copyright owner’s potentialmarket and not involve commercial benefits.The author also found out that terms and conditions in social media sites’Terms of use are enforceable according to Thai contract laws. However, Terms of Useare considered to be unreasonably unfair to the users.On the other hand, in terms of copyright law, could such Terms of Use beconsidered as an assignment of copyright ownership?” If such Terms of Use areconsidered as an assignment of copyright ownership, when those Terms of Use do notcomply with the format specified by Section 17 of Copyright Act B.E. 2537, they arenull and void pursuant to Section 152 of Civil and Commercial Code B.E. 2535. Ifsuch Terms of Use are considered as copyright license agreements, as the Terms ofUse are standard form contracts and are therefore governed by Unfair Contract TermsAct B.E. 2540, accordingly such Terms of Use are enforceable as reasonably andequitably as considerations are given under different circumstances.The author analyzes further that for those users who do not employ PrivacySettings upon initiating their account, such act could be considered as implicit attempton those users’ part to license their copyrighted work.The research was mainly based on domestic approach of Thai law. UnitedStates’ law was supplemented merely for better understanding and comparison ofapproaches relating to copyright law. Chapter 2 was supplemented with foreign lawsin order to provide different perspective and insights of ownership in social mediaaccount and its contents.