Copyright basics
Starting with the basics: understanding the definition and the scope of copyright
What is “copyright”?
Copyright is an exclusive right granted to the creator of an original work. The copyright owner holds exclusive rights over their creation, including reproduction, adaptation, publication, and other related rights. Unlike other intellectual property rights, copyright does not arise from registration but is automatically granted upon the creation of the work.
What type of creation can be protected by copyright?
Under the Thai Copyright Law, copyright protection extends to the following categories: literary, dramatic, artistic, musical, audiovisual and cinematographic works, sound recordings and broadcastings and video broadcastings.
Mathematic theories, news, legal texts (laws, regulations, judicial decisions, etc.) and their translations (if done by government agencies) are not protected by the Copyright Act.
What kind of rights and prerogatives come with copyright?
Two types of rights come with copyright: economic rights and moral rights. Economic rights refer to a series of rights that allow the copyright owner to commercially exploit the work, including: reproducing or adapting the work, communicating the work to the public, leasing the original or copies of the work, licensing any of these rights and assigning the copyright. While economic rights can be assigned or transferred, moral rights are not transferable. They include the right of attribution (the right to be identified as the author of the work), but also the right to prevent any person from modifying the original work in such a way that would cause damage to the reputation or dignity of the author.
Finally, performers benefit from exclusive rights over their performance, which are: recording, broadcasting, communication to the public and reproducing the recording material of the performance.
How can copyright be used in combination with trademark or design protection?
A trademark may consist of a photograph, drawing, invented device, sound, or a combination thereof, which may also qualify as a copyrighted work. A copyrighted work may be eligible for trademark protection if it is used for commercial purposes, such as functioning as a brand or logo in the sale of goods or services.
Likewise, a copyrighted work may be protected as a design if it is applied to a product which is capable of industrial application and has primarily a practical purpose. While copyright protects the original artistic expression, design protection extends to the visual appearance of the work, including its shape, configuration, and surface patterns.
Automatic protection and optional recordal: obtaining copyright
Automatic protection
Copyright protection arises automatically upon the creation of a qualifying work. In Thailand, copyright owners may voluntarily register their work with the Department of Intellectual Property as a means of creating a formal record, which may be used as evidence in the event of copyright infringement.
Optional recordal procedure
The Thai Department of Intellectual Property set up a system of optional and voluntary copyright recording. The recordal process is rather fast (one month), straightforward and free of charge.
The applicant should submit an application form which includes basic information such as the title of the work, the type of work, the full name of the copyright holder and/or the creator/author, a brief description of the creative process, the method of copyright acquisition (e.g. original creation, employment contract), the type and nature of ownership (i.e. sole authorship or joint authorship), the place and date of creation and the date of first publication.
The application form must be accompanied by supporting documents, including a sample of the work, copy of ID cards, passport or company registration certificate of the author and copyright owner, a certificate of copyright ownership and a Power of Attorney in case of representation.
Duration of protection
For individual authors, copyright protection lasts for the lifetime of the author plus an additional 50 years after their death. If the work is first published posthumously, the term is 50 years from the date of first publication.
For juristic persons, the copyright term is 50 years from the date of creation, or if the work is published during that time, 50 years from the date of first publication, whichever is later.
These rules differ for specific categories of works:
- For audiovisual and cinematographic works, sound recordings and broadcasts, the protection lasts for 50 years from the date of creation, or if published during that time, 50 years from the date of first publication.
- Works of applies art are protected for 25 years from the date of their creation, or if published within that period, 25 years from the date of first publication.
Copyright infringement: what it is, enforcement remedies and legal sanctions
Reproducing the work, sharing with the public and distributing the work to the public, adapting, selling and importing the work in Thailand without the permission of the copyright holder all constitute acts of copyright infringement.
Enforcement remedies for copyright infringement acts vary based on the scale of the infringement. The copyright owner may start by sending a legal notice or cease-and-desist letter to the infringer, which can include a request for financial compensation. For large scale infringement, contacting the authorities may be required to organize a raid at the infringer’s premises. To facilitate the intervention of authorities, it is advisable to provide them with the copyright notification (recordal notice) from the Thai Department of Intellectual Property.
Penalties for copyright infringement vary based on the type of rights infringed and the purpose of the infringement, which is aggravated if committed for commercial purposes. Legal sanctions range from a simple fine of THB 20,000 to a fine of THB 800,000 and 4-years imprisonment. Sanctions can be doubled for repeated offenders.
From a user perspective: mitigating the risks of copyright infringement
Fair use and other exceptions to copyright infringement
Exploitation of the copyright work without the prior consent of the copyright owner is allowed by law in a number of cases, mainly for research, educational or judicial purposes, as long as it is not for profit. The following acts are also allowed:
- Use for personal benefit and/or for other close relatives, except a reproduction of a cinematographic work in a cinema;
- Comment, criticism or review of the work with a copyright ownership acknowledgement;
- News reporting through mass-media, as long as the copyright ownership is acknowledged;
- A reasonable recitation or quotation of the work with copyright ownership acknowledgement.
Dramatic or musical copyright work may also be publicly performed if the performance is not for profit. Likewise, an artistic work located in a public space may be freely photographed, painted, drawn etc.
Copyright assignment and licensing
To use someone else’s work protected by copyright, one can negotiate with the copyright owner an assignment or licensing.
Assignment involves the transfer of the ownership of the work, whereby the assignee will have the exclusive right to exploit the work. It should be recorded in writing, but the assignment terms are flexible: the work can be assigned in whole or in part, for a limited period or until the end of the protection term. If the duration of the assignment is not specified, it will be presumed to be for 10 years. Assignments are usually not revocable. Moral rights cannot be assigned.
With licensing, the copyright owner retains control over their work. They allow one party (exclusive license) or several parties (non-exclusive license) to use some of the economic rights conferred by copyright under explicit conditions specified in the license agreement. License agreements can be revoked. Copyright licensing is widely used in the music industry, allowing creators to collect royalties.
The assignment and licensing agreements can be recorded with the Thai Department of Intellectual Property for evidentiary purposes, but recordal is not mandated by law.
Collective Management Organizations (CMOs)
CMOs are intermediaries between copyright owners and users. They grant licenses to users and collect royalties on behalf of rights holders. The main CMOs in Thailand are:
- Music Copyright Thailand (MCT) for performance rights: as a member of the International Confederation of Societies of Authors and Composers (CISAC), they represent both foreign and Thai creators.
- Phonorights (PNR) for recorded music: member of the International Federation of the Phonographic Industry (IFPI), they represent some foreign artists and Thai creators and more than 70 music labels, including Sony Music, Universal Music and Warner Music.
- MPC (a MCT and PNR joint venture) handles public performance licenses for foreign music.
- Some record companies also function as CMOs for their own catalogs, such as GMM Grammy, Tero Entertainment and SM True.
CMOs usually obtain a mandate from copyright owners, akin to a licensing agreement for performance and mechanical rights, allowing them to administer, license, and distribute royalties for the artistic works. There is currently no legislation on CMOs in Thailand but the Department of Intellectual Property issued Code of Conduct in 2021 on transparency, reporting, member duties and audit requirements.
