Abstract: The idea that ‘copyright is an engine of free expression’ has been widely discussed after the US Supreme Court judgments, Harper & Row v Nation Enterprises in 1985 and Eldred v Ashcroft in 2003. Subsequent cases stated that copyright is an interference with the fundamental right of freedom of expression, which is acceptable if it pursues legitimate and necessary purposes in a democratic society. This chapter does not accept that copyright is simply either an engine of free expression or an interference with freedom of expression, but there is more to it. The chapter illustrates this with discussion of the relationship between copyright and freedom of expression in South East Asia.
One popular form of online digital works is parody. Parody is a kind of derivative work which is eligible for copyright protection under the Berne Convention. Parody contains parts of the original work creating the possibility of copyright infringement. Online digital parody also creates some questions about copyright protection and the status of unauthorised online digital derivative works. In order to explore copyright protection given to unauthorised online digital derivative works, this chapter begins with a comparison of US and UK law. Then it will explore the interpretations of the Thai Supreme Court regarding originality and creativity and copyright protection granted to original and derivative works. This includes an analysis of the meaning of ‘author’ under the Thai Copyright Act. An appendix to the chapter concludes with an overview of the meaning of ‘author’ and the protection granted to unauthorised derivative works in the laws of some other Asian countries.