Copyright ownership in employment relationships

The owner of a copyright has the exclusive right to exploit the copyrighted work, including the rights of reproduction, adaptation, communication to the public, and licensing of such rights to third parties, as provided under Section 15 of the Thai Copyright Act B.E. 2537 (1994) (as amended). Identifying the copyright owner is therefore essential in establishing who is legally entitled to use, authorize, or control the exploitation of the work. Under the fundamental principle set out in Section 8 of the Act, the author or creator of a work is the first owner of the copyright, subject to specific conditions prescribed by law. Copyright protection arises automatically upon the creation of the work, without any requirement for registration.
 
However, there are circumstances in which the copyright does not belong to the individual who created the work but vests in another party by operation of law or pursuant to specific conditions, such as in the case of works created in the course of employment. In many jurisdictions, particularly those that incorporate common law principles, the default rule is that works made for hire or works created in the course of employment belong to the employer, unless the parties expressly agree otherwise in writing.
 
In contrast, Thailand adopts a creator-oriented approach. Even when a work is created in the course of employment, the author or creator remains the first owner of the copyright, unless a written agreement provides otherwise. By default, the copyright belongs to the employee, while the employer is entitled only to use the work to the extent necessary for the purpose of the employment. This framework is expressly governed by Section 9 of the Thai Copyright Act, which recognizes the employee’s ownership of the copyright and grants the employer limited rights to communicate the work to the public within the scope of the employment purpose.
 
I. Work created in the course of employment
 
Pursuant to Section 9 of the Thai Copyright Act, the statutory default position is that copyright in any work created by an author in the course of employment vests in the author or the employee. This provision applies only to individuals working under a true employment contract, and does not extend to commissioned works. Although the employer is not the default copyright owner, the law provides two important exceptions:

1) Employer’s right to communicate the work to the public: the employer is entitled to communicate the copyrighted work to the public without the employee’s consent, provided that the work was created in accordance with the purpose of the employment. For example, if an employee is hired as a writer and produces written content under the scope of their employment, the employer may publish or publicly communicate such work even though the copyright formally belongs to the employee.
 
2) Written agreement vesting copyright in the employer: the parties may expressly agree in writing that the copyright in the work shall belong to the employer. Such an agreement may be incorporated into the employment contract itself or set out in a separate written assignment. In practice, employers commonly include copyright assignment clauses to ensure full ownership and to avoid ambiguity.

These exceptions are significant because, unlike in many jurisdictions where employers automatically own works created by employees, Thai law requires a written agreement to vest copyright ownership in the employer rather than in the creator of the work.
 
II. Work created in the course of commission
 
When a work is created under a hiring arrangement other than an employment contract, such as work performed by an independent contractor or freelancer, the copyright will, by default, belong to the commissioning party or the employer, unless the parties agree otherwise. This principle is set out in Section 10 of the Thai Copyright Act. Unlike Section 9, which expressly requires a written agreement to alter the default ownership for works created in the course of employment, Section 10 does not specify that the agreement must be in writing. Accordingly, in cases involving independent contractors or freelancers, the parties may agree on copyright ownership either in writing or orally.
 
However, although an oral agreement is legally permissible under Section 10, it is generally advisable for the parties to record their agreement in writing to avoid ambiguity or disputes regarding the intention of the parties, particularly in commercial or high-value projects.
 
III. Special ownership cases
 
In cases where the employer is a ministry, bureau, department, other government agency, or local administrative unit, the copyright in works created under the following circumstances belongs to such government entity, unless otherwise agreed in writing:

1) In the course of commission: for example, where the Ministry of Science and Technology hires a researcher to prepare a report on any topic within the purview of the Ministry, the report is created as commissioned work for a specific purpose and with the objective of achieving defined results. Accordingly, the copyright in the report belongs to the Ministry.
 
2) By order: for example, an officer of the Department of Intellectual Property is instructed to prepare a public relations document explaining the process of copyright notification. Although the assignment may not fall within the officer’s regular scope of duties, the work is created pursuant to a specific order; therefore, the copyright belongs to the Department of Intellectual Property.
 
3) Under control: for example, a district office assigns an officer to design a public awareness poster on flood-prevention measures, and the officer subsequently hires an external contractor to carry out the design work. As the work is created under the authority’s control, the copyright belongs to the district office.

IV. Author’s rights in employee-created works
 
Even where the economic rights are assigned to the employer as a result of the employer being deemed the copyright owner under applicable circumstances, the use of the work is not entirely unrestricted. The author or creator continues to retain the moral rights vested in the work. Accordingly, where any use of the work involves distortion, shortening, adaptation, or any other act that may prejudice the honor or reputation of the author or creator, the author shall retain the right to object to such acts pursuant to their moral rights under Section 18. These moral rights are non-transferable and cannot be assigned to the employer. Such moral rights also include the right to be identified as the author or creator of the work. Furthermore, unless otherwise expressly agreed in writing, the creator’s heirs shall be entitled to institute legal proceedings to enforce such moral rights throughout the entire term of copyright protection following the creator’s death.
 
V. Essential takeaways for businesses operating in Thailand
 
Based on the foregoing, the law establishes default rules on copyright ownership for each circumstance, while not precluding the parties from agreeing otherwise. Accordingly, a written agreement is a key instrument for determining copyright ownership, as, in the absence of such an agreement, ownership will vest in the party prescribed by law. This often gives rise to disputes, particularly where the created works possess significant value and are produced through a combination of the employee’s intellectual effort and the employer’s resources or funding. Copyright ownership is highly desirable, as it confers exclusive economic rights to exploit the work and to authorize its use or further development. Therefore, the most effective means of preventing potential disputes is for the parties to clearly stipulate, in writing and within any relevant contractual agreement in writing (whether in an employment contract, a contract for commission, or a separate assignment or licensing agreement), the ownership of copyright and the scope of rights of both the copyright owner and the author, including economic rights and moral rights.
 
The importance of such contractual clarity is especially evident in employment relationships, where disputes commonly arise after the termination of employment. Even where an employer has used a copyrighted work created by an employee in the course of employment, such use does not, in itself, confer copyright ownership upon the employer. In the absence of a clear written agreement to the contrary, the employee, as the author, retains the right to object to such use and may reclaim or control the use of the work after the employment relationship has ended. This principle is reflected in Supreme Court Judgment No. 9523/2544, in which the Court held that a computer program created by an employee during employment, for use with the employer’s office computer, remained the employee’s copyrighted work, and that the employee was entitled to demand the return of the computer program upon termination of employment.
 
While the parties may freely agree on the assignment or licensing of economic rights, the law also permits the parties to define the scope of the author’s moral rights. For example, the parties may agree in writing that the right to enforce moral rights shall vest solely in the author during the author’s lifetime and shall not pass to the author’s heirs after death. Such an agreement must be expressly made and clearly documented to be legally effective.
 
Furthermore, although copyright protection arises automatically upon the creation of a work, voluntary notification with the Department of Intellectual Property (DIP) serves as strong prima facie evidence of copyright ownership. Such notification may therefore play a significant role in resolving disputes concerning authorship or ownership, particularly in cases where contractual terms are ambiguous or contested.
 
VI. Conclusion
 
Under Thai copyright law, the ownership of a copyrighted work created in the course of employment, commission, or under a government entity, can be attributed following default statutory provisions in the Copyright Act. However, these rules are not absolute and may be altered by agreement between the parties. Accordingly, copyright ownership may not only depends on the nature of the legal relationship under which the work is created but also on the existence and clarity of any contractual arrangements, particularly where the parties intend to depart from the statutory default ownership. It is therefore essential that copyright ownership and the scope of permitted use be expressly and clearly agreed upon in writing, as written agreements remain the most effective means of overriding default statutory positions and mitigating the risk of possible disputes.

References:
[1] Thai Copyright Act B.E. 2537 (1994)
[2] Supreme Court Judgment No. 9523/2544
[3] Paichit Punyapan.  (1989, November–December).  Copyright in works created by employees of ministries, bureaus, and departments.  Dunlaphaha, 36(6), 10–11.
[4] Dr. Sipim Wiwatwattana.  (2021).  The ownership of copyright in works created in employment relationships.