Copyright Ownership in Thailand: A Guide to Work-for-Hire and Employment Agreements

In Thailand, the Copyright Act of 1994 (the “CA“) serves as the main law to protect creative works. It’s designed to balance the rights of creators with the needs of society to access and utilize creative content. Understanding the CA is crucial for businesses, employee, contractor, and anyone involved in the creation or use of copyright protected material. One of the most important, and often misunderstood, aspects of Thai copyright law concerns the ownership of copyright when creative works are produced under different types of agreements – specifically, “hire-of-work” agreements (often called commissioned work) and traditional employment contracts.

Understanding the Fundamentals of Thai Copyright Law

The CA grants copyright protection to a wide range of creative works, including:

• Literary Works: Books, articles, poems, computer programs, and other written content.
• Dramatic Works: Plays, screenplays, and other works intended for theatrical performance.
• Artistic Works: Paintings, sculptures, photographs, illustrations, and architectural designs.
• Musical Works: Songs, musical compositions, and accompanying lyrics.
• Audiovisual Works: Films, television shows, and other video content.
• Sound Recordings: Recordings of music, speech, or other sounds.

Copyright protection gives the creator (or the copyright owner) a bundle of exclusive rights, including the right to:

• Reproduce the Work: Make copies of the work.
• Adapt the Work: Create derivative works based on the original work.
• Distribute the Work: Sell or otherwise transfer copies of the work to others.
• Communicate the Work to the Public: Perform, display, or broadcast the work publicly.
• Rent or Lend the Work: Commercially rent or lend copies of the work.

These rights allow the copyright owner to control how their work is used and to profit from it. However, it’s essential to determine who the copyright owner is in the first place. This is where the distinction between work-for-hire and employment agreements becomes critical.

Hire-of-Work Agreements (Commissioned Work): The Client Typically Owns the Copyright

A hire-of-work agreement, also known as a commission agreement, is a contract where one party (the “commissioner”) hires another party (the “contractor”) to create a specific work. This is a common arrangement in many industries, including:

• Graphic Design: A company hires a freelance designer to create a logo, website design, or marketing materials.
• Photography: A business hires a photographer to take product photos or event photos.
• Software Development: A company hires a freelance programmer to develop a specific software application.
• Writing: A publisher commissions a writer to write a book or article.

In these scenarios, the key question is: who owns the copyright to the work created by the contractor?

Thai copyright law, specifically Section 9 of the Copyright Act, provides a clear answer: Unless there is a written agreement stating otherwise, the copyright to a work created under a hire-of-work agreement vests in the commissioner (the person or entity who hired the contractor).

Why This Rule Exists

The rationale behind this rule is that the commissioner is typically paying for the creation of the work and is providing specific instructions or guidance to the contractor. The commissioner is, in effect, directing the creative process and should therefore own the resulting copyright.

The Importance of Written Agreements in Work-for-Hire Scenarios

While Section 9 provides a default rule, it’s crucial to remember that it can be overridden by a written agreement. This means that the commissioner and the contractor can agree that the copyright to the work will belong to the contractor, or that it will be jointly owned.

Having a written agreement is essential for several reasons:

• Clarity and Certainty: A written agreement eliminates any ambiguity about who owns the copyright.
• Flexibility: It allows the parties to tailor the copyright ownership terms to their specific needs and circumstances.
• Dispute Resolution: It provides a clear framework for resolving any disputes that may arise in the future.

Employment Agreements: The Employee Initially Owns the Copyright (But This Can Be Changed)

An employment agreement is a contract between an employer and an employee that defines the terms and conditions of employment. When an employee creates copyrighted work as part of their regular job duties, the default rule under Thai copyright law is different from that of work-for-hire agreements.

Section 10 of the Copyright Act states that the copyright to a work created by an employee in the course of their employment vests in the employee (the creator), unless there is a written agreement stating otherwise.

The Employer’s Right to Use the Work

Even though the employee initially owns the copyright, Section 10 also grants the employer the right to “communicate such work to the public in accordance with the purpose of the employment.” This means that the employer can use the work for its intended business purpose, such as including it in marketing materials or using it in its products or services.

Why the Default Rule Favors Employees

The rationale behind this rule is that employees are typically not working under the same level of specific instruction as contractors in work-for-hire agreements. Employees are often given more creative freedom and autonomy in their work, and the law seeks to protect their rights as creators.

The Critical Importance of Written Agreements in Employment Agreements

Just like with work-for-hire agreements, the default rule in Section 10 can be overridden by a written agreement. This is where things get particularly important for employers. To ensure that the company owns the copyright to works created by its employees, the employment agreement must explicitly state that the copyright vests in the employer.

Why Employers Need to Be Proactive

Many employers mistakenly assume that they automatically own the copyright to works created by their employees. This is not the case under Thai law. If an employment agreement does not contain a clear assignment of copyright to the employer, the employee will retain ownership of the copyright, even if the work was created during work hours and as part of the employee’s job duties.

This can lead to significant problems for employers, such as:

• Inability to Control the Use of the Work: The employee could potentially license or sell the work to a competitor.
• Difficulty in Enforcing Copyright Infringement: The employer may not have the legal standing to sue someone who infringes on the copyright.
• Uncertainty About Ownership: Disputes over copyright ownership can be costly and time-consuming to resolve.

Drafting Effective Copyright Clauses in Employment Agreements

To avoid these problems, employers should carefully draft the copyright clauses in their employment agreements. The clause should clearly and unambiguously state that the employer owns the copyright to all works created by the employee during their employment, including:

• Inventions: Patents and other inventions.
• Literary Works: Writings, software, and documentation.
• Artistic Works: Designs, graphics, and artwork.
• Marketing Materials: Brochures, websites, and advertisements.

The clause should also state that the employee agrees to assign all rights, title, and interest in the works to the employer and register such assignment with the Department of Intellectual Property if requested by the employer.

Beyond the Agreement: Practical Steps for Employers

In addition to having a well-drafted employment agreement, employers should also take other practical steps to protect their copyright interests, such as:

• Maintaining Clear Records: Keep detailed records of all creative works created by employees, including the date of creation, the author, and the purpose of the work.
• Implementing Confidentiality Agreements: Require employees to sign confidentiality agreements to protect the company’s trade secrets and other confidential information.
• Using Copyright Notices: Include copyright notices on all copyrighted works.

Conclusion: Protect Your Creative Assets with Clear Agreements

By carefully drafting work-for-hire and employment agreements and by taking other practical steps to protect their copyright interests, businesses can avoid costly disputes and ensure that they own and control their creative assets.