Software and intellectual property law in Thailand

6 October 2021

In Thailand, Section 4 of the Thai Copyright Act, 2537 B.E. (1994) (“the Copyright Act”) defines software (referred to as a “computer program”) as a set of instructions or anything which is used with a computer to make the computer work or to generate a result, regardless of the computer language used. The level of protection for software is the same as that for literary works. Consequently, the foremost protection afforded by the Copyright Act is protection of the source code. Thailand is a signatory to the Berne Convention for the Protection of Literary and Artistic Works of 1931 (“the Berne Convention”) and the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1995 (“TRIPs”). Under both the Berne Convention and TRIPs, the copyright for the work of a creator from signatory countries is protected under the Copyright Act.

In order for software to be protected under the Copyright Act, the software must be the result of the creative expression of the ideas of the author, and such an expression of ideas must be sufficiently original. The Copyright Act only protects expressions of ideas, not the ideas themselves. The required level of originality or creativity is minimal. However, under Section 4 of the Copyright Act, the work to be protected must be original – that is, not a duplication of a prior work. It is not necessary that the work be novel, but it must be created or made by the creator’s effort, and not copied or reproduced or adapted from other copyrighted works (Supreme Court Ruling No. 2750/2537). In addition, only the owner of a copyrighted work has the exclusive right to use the work, including software, as it wishes, and to prevent others from using the software without its permission, in accordance with Section 15 of the Copyright Act.

One important point to note is that a copyright does not have to be registered. A software or other copyrighted work such as Textbook, Personal Vlog, Personal Blog, Photograph etc. is protected automatically if it meets the requirements set out in the intellectual property laws. However, the owner can submit a copyright notification to the Department of Intellectual Property in Thailand in order to prove ownership. The penalties for copyright infringement range from THB 20,000 to THB 200,000 if the infringement was not commercially related. The penalties for an infringement that is commercially related are even stiffer, consisting of a prison sentence of six months to four years and a fine of up to THB 800,000. In addition, one-half of the fine paid in accordance with a court order shall be given to the owner of the copyrighted work. Furthermore, the owner of the copyright still has the right to bring a civil action against the offender for compensation for damages that exceeds the amount that the owner received from any fine previously imposed.

In addition to copyright, businesses and individuals alike need to be aware of similar intellectual property issues, such as those relating to trademarks and patents. Mazars’ professionals offer services related to intellectual property issues, including providing legal advice, registering intellectual property in Thailand, and coordinating the registration of intellectual property abroad.