You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

February 20, 2015

Challenges of Protecting Intellectual Property in the Software Industry

Subscribe to Updates
Bangkok Post, Corporate Counsellor Column

In the fast-evolving and highly competitive technology industry, software developers and owners should exercise strong vigilance to ensure that their creations are properly guarded within the ambit of intellectual property rights. Protecting software, however, involves complex, interrelated issues that encompass a mix of copyright, patent, trademark, and trade secrets law.

In this article, we will examine what people in the software industry should know to adequately protect their creations and operate their business with fewer hitches.

Software as a Copyrighted Literary Work

Copyright protection applies to computer source code and is not limited to any particular language. The protection is automatic—i.e. no registration is required—but owners can still record their software as a copyrighted work with the Department of Intellectual Property to better prove ownership, should the need arise. The process, known as recordation, is free and uncomplicated.

Newly developed source code can be filed for recordation at any time. Important documents required include a copy of the first five pages and the last five pages of the source code, or a CD containing the relevant software.

Functions and Features of Software

Copyright law does not protect ideas about functions and features of software, nor does it protect functional user interfaces. For this reason, rival companies can develop the same kind of software and will not be considered to have committed copyright infringement, so long as the software has its own source code.

Ideas about software functions and features may, however, be protected under patent law. Currently, software is not patentable in Thailand, but in some countries, including the United States, it is. Thailand may be moving in this direction, as certain hardware or devices programmed with functions that are novel and involve an inventive step would be deemed patentable under Thai law, but these are considered on a case-by-case basis.

Source Code

Normally, after software has been commercially distributed, the source code is kept confidential and is only disclosed in necessary cases. If the source code is kept under appropriate security measures, it may be protectable under trade secret law, which imposes serious penalties on those who intentionally disclose, deprive, or use another party’s trade secrets without that party’s consent.

Copyright Ownership

The copyright of software developed by an employee under an employment contract is owned by the employee, unless agreed otherwise in writing. By contrast, the copyright of software developed under a specially commissioned contract will belong to the commissioning party. However, developers for other parties and their commissioners may agree that the copyright shall be owned by the developers.

License Agreements

If a customer requires a software developer to deliver source code, the parties should make it clear whether the customer wants to own the source code or merely customize or update the software in the future. This is because a software sale agreement or an agreement to assign copyright to the source code is significantly different from a license agreement.

If the parties agree to a software license agreement, under which the source code is required to be disclosed for the purposes of customizing or updating the software, the developer may include a provision under which the customer is obligated to keep the source code confidential.

Software license agreements do not bar copyright owners from granting licenses to other parties. As copyright is alienable, licensable, and divisible, many types of software license agreements exist, for example:

  • Exclusive Licenses: Only the licensee has the right to make use of the software. The licensor is not allowed to make use of it, nor grant any additional licenses.
  • Sole Licenses: Only the licensee is allowed to make use of the software. The licensor agrees to not grant any additional licenses, but retains the right to make use of the software.
  • Nonexclusive Licenses: The copyright owner may grant licenses to several users simultaneously and the licensor can also make use of the software. General software programs and mobile applications are normally licensed non-exclusively.

Copyright can be licensed to multiple users, unless expressly prohibited, such as under exclusive or sole license agreements. If the licensee does not want the copyright owner to grant licenses to other parties, the copyright license agreement must include a clause to this effect.

Registering Software Brands or Logos as Trademarks

Developers should create a brand name or trademark, for the purpose of internal reference, as well as for copyright recordation and licensing. Words or devices used as trademarks must not directly describe the nature or characteristics of the goods or services—otherwise, the trademark will not be registrable. Words or devices used as trademarks should be distinctive and must not be identical or similar to other parties’ registered trademarks.

Granting a software copyright license to a foreign company does not require registration. Many software products, however, bear widely known trademarks. Therefore, in addition to a software copyright license, a copyright owner may have to grant a trademark license to its customer—such as a distributor appointed in a foreign country. In such a case, the trademark should also be registered in that foreign country.

Products and services relating to software change rapidly, and sometimes existing protection may not completely cover all aspects of a new, innovative piece of software. Therefore, developers, government bodies and lawyers should regularly exchange ideas and opinions and keep themselves up-to-date to be able to deal with new problems effectively.

Download Full Article
Related Professionals

Industries

Technology

Practices

Intellectual Property

Location

RELATED INSIGHTS​ 

March 10, 2026
Thailand’s Ministry of Finance and Securities and Exchange Commission (SEC) have issued regulations broadening the criteria for determining who qualifies as a “major shareholder” of licensed securities and digital asset business operators. Under relevant SEC regulations, major shareholders of a regulated entity must obtain regulatory approval and undergo screening by the SEC. The revised framework introduces both shareholding-based and control-based tests to determine which shareholders require regulatory approval for a wider range of indirect ownership structures and de facto control. The Ministry of Finance notification took effect on February 21, 2026, while the SEC’s clarifying rules took effect on March 4, 2026. These changes aim to enhance transparency around beneficial ownership and strengthen regulatory oversight of entities operating in Thailand’s capital markets. Expanded Definition Under the revised framework, a “major shareholder” now includes persons who directly or indirectly hold more than 10% of the voting rights in a regulated company, as well as persons who exercise control over the regulated company or its shares. This system of two separate tests, based on both shareholding and control, differs from the prior regime, which focused primarily on shareholding thresholds and applied a more limited method for determining indirect shareholdings. The two tests (detailed below) operate independently of each other, and any person identified by either of the tests will be deemed a major shareholder. Shareholding-Based Test Broadens Indirect Ownership Attribution For the shareholding-based test, the SEC recognizes two existing methods for identifying indirect ownership, together with a new proportional attribution method. Any person captured under these methods, which are described below, will be regarded as a major shareholder of the regulated company and must obtain SEC approval as a major shareholder. First, the existing framework continues to apply to both first-tier and chain ownership structures. Approval is required for (1) first-tier
Read More
March 6, 2026
Thailand’s Legislation Consideration Committee of the Ministry of Interior has ruled that in-game loot boxes in online games do not constitute gambling under the Gambling Act B.E. 2478 (1935). This first-of-its-kind ruling provides useful guidance for online game operators and digital entertainment companies operating in Thailand. Background The ruling came in response to an inquiry concerning an online role-playing game operator that launched a campaign featuring a loot box mechanism. The mechanism allowed players to purchase a token in exchange for the opportunity to receive a virtual loot box containing randomized in-game items. The key features of this were as follows: The items received were digital, noncash items usable only within the game. The items could not be exchanged, redeemed, or converted into cash with the game operator. Items may differ in rarity but remain purely virtual. The central question was whether paying money to obtain randomized in-game items constituted a risk-based activity involving the chance to receive money or property of monetary value, which would constitute gambling under the Gambling Act. Committee Ruling The committee reached the following conclusions regarding the characteristics of the game’s loot-box mechanism: No cash or monetary equivalent: Players did not receive cash or property that could be exchanged for cash. The in-game items were merely usage rights within the online game ecosystem. No real-world monetary valuation: There was no determination of item value in real currency, and no mechanism for redeeming or converting items into money with the game operator. Any off-platform trading of in-game items between players is irrelevant to online game operators, as any value arising from such transactions is determined by the market rather than by the operators themselves. Service fee characterization: Payments made by players purchasing in-game loot boxes constituted fees for online game services. Accordingly, the committee concluded
Read More
March 5, 2026
Thailand’s Securities and Exchange Commission (SEC) has filed a criminal complaint against a licensed digital asset broker, its overseas trading platform, and its executives for allegedly operating an unlicensed digital asset exchange targeting Thai customers. The case marks an escalation in the SEC’s enforcement efforts against unlicensed offshore platforms that attempt to serve Thai users through local licensed entities. Criminal Complaint On February 20, 2026, the SEC filed a criminal complaint with the Economic Crime Suppression Division against a local licensed digital asset broker, its overseas global trading platform, and its executives. The SEC alleges that the parties violated the Digital Asset Business Emergency Decree B.E. 2561 (2018) by cooperatively operating a digital asset exchange business on a cross-border basis since 2023 without the required SEC license. According to the SEC, the local broker promoted the overseas platform’s services to the public through Thai-language posts on social media channels, with services available exclusively to customers residing in Thailand. Access to the global platform was provided through the local broker’s website and mobile application. Customers who registered for the local broker’s services were automatically granted access to the global platform without having to undergo a separate identity verification process. The SEC also found that the local broker provided back-office system support services to the global platform. The SEC considers these activities to constitute joint operation of an unlicensed digital asset exchange. The former executives of the local broker are being held liable as the responsible persons during the relevant period. The SEC emphasized that the complaint initiates the criminal process, and the decision to prosecute or convict the accused parties will ultimately be made by law enforcement authorities and the criminal courts. Platform Blocking The SEC has also coordinated with the Ministry of Digital Economy and Society to block public
Read More
February 27, 2026
The Bank of Thailand (BOT) has officially implemented a new regulatory framework supervising systemically important retail payment systems (SIRPS), effective February 21, 2026, with PromptPay being the first payment system designated as a SIRPS. Under this new set of regulations, the BOT may designate payment systems under the Payment Systems Act B.E. 2560 (2017) as SIRPSs based on quantitative and qualitative assessments. Once a system is designated as a SIRPS, the operator becomes subject to expanded supervisory obligations beyond the general requirements of the Payment Systems Act. Enhanced Supervisory Requirements SIRPS operators must comply with a heightened supervisory regime across three key areas, outlined below. 1. Governance SIRPS operators must maintain robust and transparent governance structures, including: Balanced board composition, with at least one-third of the board comprising independent directors who represent stakeholders in the system (such as payment service providers, consumers, and experts). Independent directors may serve for no more than two consecutive terms. Subcommittees to assist the board in overseeing compliance, policy implementation, and operational strategy. Clear separation between executives responsible for risk and information security and those overseeing day-to-day business operations. Risk Management and System SecuritySIRPS operators must implement comprehensive risk management frameworks, including: Clear service agreements between the SIRPS operator and its direct participants (payment service providers who connect directly to the SIRPS), defining roles and responsibilities among stakeholders. These agreements must include obligations for direct SIRPS participants to supervise any indirect participants they onboard to ensure compliance with service agreements and business rules. A business continuity plan covering both IT and non-IT aspects, with annual review. The SIRPS must target service availability comparable to international payment infrastructures, including the ability to recover operations within two hours of a disruption and to maintain scalable operational capacity. Tools and controls to monitor and manage material or
Read More