According to The International Property Rights Index 2015, Thailand is ranked 69th in the world when it comes to the protection of intellectual property rights, including copyrights. This is not a surprise ranking as plagiarism and imitation of copyrighted works of other people are rife in Thailand, albeit illegal.
Indeed, the protection of copyrights can be good for the Thai IT industry and the competitiveness of Thailand as a whole because it will essentially help stimulate new ideas, protect the creator against infringement and guarantee commercial exploitation for the benefit of the creator, through licensing or franchising.
This article is intended to provide a snapshot on copyrights-related matters which businessmen should know in doing business in Thailand.
1. Copyrightable works
Generally, there are 9 categories of works that are copyrightable, i.e. literary works, dramatic works, artistic works, musical works, audiovisual works, cinematographic works, sound recordings, sound and video broadcasting and other works in the literary, scientific or artistic domain. Thus, certain relevant forms of works in the business world that can be subject to copyrights protection include computer programs, website contents, info-graphics, videos, magazines, newspapers, pamphlets, commercial advertisements, TV contents, songs, movies, building designs and interior or exterior decoration designs, all of these must be original and not be copied from others though.
2. Copyrighted works created or published overseas
Thai laws recognize and automatically protect copyrighted works created or recorded in foreign countries without any further formality, provided that the creators of such works are nationals or residents or first published such works in a member country of the Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”) or the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”). Some examples of the member countries of the Berne Convention and TRIPs Agreement include the USA, UK, Japan, Germany, Singapore and Thailand.
3. Necessity of recordation and registration
There is no system of registration of copyrights in Thailand. Copyrighted works however can be recorded at the Copyright Office under the Department of Intellectual Property, Thai Ministry of Commerce (http://cpronline.ipthailand.go.th/dipcpr/). The recordation is neither a legal must nor a pre-condition to protection in Thailand.
In practice, however the recordation is legally recommended because the record will be a key proof of evidence in respect of the creator’s or author’s ownership as well as the date of creation or publication in the event of dispute, enforcement or litigation.
4. Copyrighted works created in the course of employment
In general, if a company employs someone as an employee and this person creates some copyrighted works in the course of employment (e.g. writing website contents for the company’s website or producing commercial advertisements for a client of the company), then the rights to such copyrighted works will legally belong to the employee, i.e. the creator of such works, except where the employer and employee agree otherwise.
5.Copyrighted works created in the course of hire of work
If a company engages someone or another company to produce or create some works for the company as part of, for example, a supplier, contractor or hire of work relationship (as opposed to employment), then the rights to such copyrighted works will legally belong to the company, i.e. the person who pays for the production or creation of such works, except where the company and the supplier or contractor, as the case may be, agree otherwise.
The use of copyrighted works owned by other person can be done without having to seek any approval or consent from such person if the use falls within certain exemptions.
Such exemptions include the use for research or work study for a non-profit purpose, news reporting through mass media with acknowledgement of owner of copyright, reproduction for judicial or administrative proceedings as well as reproduction for teaching at a non-profit institution.
7. Licensing of copyrights
From the standpoint of the owner of copyrighted work, the most common and straightforward method to allow others to legally and legitimately use their copyrighted work is by way of copyright licensing. The licensing allows the licensor (i.e. the copyright owner) to give permission to a licensee to use, reproduce or otherwise commercialize the copyrighted work for a certain definite or indefinite period of time in an area or country designated by the licensor, the full details of which are recommended to be clearly spelt out in a licensing agreement.
8. Length of protection
Broadly speaking, the protection can generally last at least 50 years. The period can vary depending upon such factors as whether the copyright owner is an individual or juristic entity and whether the work was previously published. For example, if an employee creates a commercial advertisement in the course of employment, the protection shall last 50 years from the first day it was created. However, if such commercial advertisement is published during this period, the protection will subsist for 50 years from the first day it was published.
9. Infringement of copyrighted works on internet
In a digital era where things can be online viewed, copied and forwarded quickly with ease, it is easy for our copyrighted works to be copied or cut and pasted by others or even by competitors. If this is the case, then we can have such infringing materials removed by sending an infringement notice to the internet service provider publishing such infringing materials, as well as to popular search engines such as Google requesting the removal of the pages containing the infringing materials from the search results. In addition, we may also lodge a motion for an injunction or file a lawsuit for damages and criminal prosecution of the infringing person in Thai courts if the infringement was committed in Thailand.
10. Consequence of violation and court process
In general, an infringement of copyrights in Thailand is a civil offence and, if such infringement was committed for commercial intents or benefits, subject also to a criminal offence by way of imprisonment. The civil and criminal penalties can vary depending upon the type of infringement. Disputes over intellectual property rights in Thailand are generally heard in the Court of Intellectual Property and International Trade.
Protecting copyrights and contesting copyright infringement in Thailand can be a complex process. If someone makes illegal or improper use of your copyrighted works, or you want to improve the protection of your works in general, please contact any of our SBC Interlaw lawyers or send an enquiry to our law firm in Thailand. Our lawyers can also help you with questions about plagiarism or imitation of copyrighted works and are definitely committed to ensure the best quality customer services for you in this matter.