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 19, 2026
Thailand’s Personal Data Protection Committee (PDPC) has launched a public consultation period to gather input for a forthcoming set of guidelines under the country’s Personal Data Protection Act (PDPA). This initiative follows the PDPC’s issuance of guidelines on consent and notification requirements in September 2022. The main consultation period, using an online questionnaire to gather feedback, runs until March 23, 2026. In addition, an interview-style online session for private-sector participants was held on March 17, and a two-day in-person event will be held on April 1–2—this is already fully booked and  walk-ins will not be accepted, but the session will be livestreamed on the PDPC’s Facebook page. The PDPC will use the public feedback to design draft guidelines that accurately reflect the operational realities of both public and private organizations, after which the guidelines will be shared with the public. Consultation Scope The PDPC has identified six priority areas for which upcoming guidance may be issued: Legal bases for processing: The online questionnaire assesses respondents’ understanding of consent requirements and seeks views on priority issues, such as explanations of the legal bases and considerations for selecting an appropriate legal basis depending on the nature of the processing activity. Security measures and data breach notification: The questionnaire examines respondents’ understanding of data breach reporting and security measure obligations. Topics proposed for inclusion in the guidelines include data breach prevention measures, incident response plans, risk assessment methods, and reporting procedures. Data protection officers: Respondents are invited to share their expectations regarding the DPO’s role and their experiences in contacting a DPO. The survey also asks respondents to identify priority issues, such as response timeframes for data subject requests and complaint procedures. Marketing and direct marketing: The online questionnaire seeks input on preferred topics for guidance, including individuals’ rights to refuse marketing
Read More
March 16, 2026
Thailand’s Securities and Exchange Commission (SEC) has broadened the definition of institutional investors, expanded the types of qualifying investments, and updated financial qualification thresholds for various investor categories through a revised notification on the definitions of institutional investors, ultra-high net worth investors, and high net worth investors. The amended framework, which came into force on March 1, 2026, adds digital asset business operators, investment planners, and investment consultants to the roster of entities recognized as institutional investors, and broadens the definition of investment to account for digital tokens. Expanded Definition of Institutional Investors Under the SEC’s revised notification, the category of institutional investors now expressly includes digital asset business operators licensed under the Royal Decree on Digital Asset Businesses B.E. 2561 (2018). This addition recognizes the growing role of digital asset platforms and service providers in Thailand’s investment ecosystem and aligns the regulatory treatment of digital markets with that of traditional markets. The definition of institutional investors now also encompasses investment planners and investment consultants approved by the SEC. Previously, only SEC-approved investment analysts held this status; the expansion covers a broader scope of professionals who possess comparable expertise and experience in evaluating investment opportunities. Broadened Investment Definition The revised framework now defines investment to mean direct or indirect investment in a wider range of assets beyond deposits. Specifically, the definition covers: Securities under the Securities and Exchange Act Derivatives under the Derivatives Act Investment tokens offered to the public Government-issued digital tokens (G-tokens) as specified in a separate SEC notification This expansion ensures that financial status assessments reflect the full spectrum of an investor’s holdings, including emerging digital assets. Updated Financial Qualification Thresholds The amended SEC notification also provides updated qualification thresholds for angel investors, ultra-high net worth investors, and high net worth investors. While the core criteria
Read More
March 13, 2026
Vietnam’s Law on Intellectual Property (IP Law) has undergone continuous amendment in recent years, with the latest amendment issued at the end of 2025. Among the amended and supplemented provisions, the regulation that has perhaps attracted the most attention is a provision relating to the use of protected IP objects by artificial intelligence (AI) systems. Specifically, Article 7 of the 2025 IP Law introduces a completely new Clause 5, which reads in full as follows: “Organizations and individuals are permitted to use texts and data relating to intellectual property objects that have been lawfully published, and which the public is allowed to access, for the purposes of scientific research, experimentation, and training of artificial intelligence systems, provided that such use will not unreasonably affect the legitimate rights and interests of the authors and intellectual property rights holders in accordance with this Law. With respect to texts and data that are objects protected by copyright and related rights, the use of the texts and data as set forth herein must also be in accordance with the regulations of the Government.” Analyzing this newly added provision in the context of how it was conceived, as well as the challenges that still lie ahead, can provide some interesting insights. From Aspirations to Flight in Science and Technology From the end of 2024 and throughout 2025—the 50th anniversary of the country’s reunification—Vietnam witnessed numerous sweeping changes in many areas, including legislative development. It could be said that no sessions of the National Assembly have ever adopted as many laws, resolutions, and major policies as this one. The aspirations of the highest-level leadership have been concretized into major law and policy projects, which were drafted, developed, and passed at record speed. All of this was aimed at building a foundation for Vietnam to achieve
Read More
March 12, 2026
Thailand’s AI legislative framework took another step forward when the Office of the Consumer Protection Board (OCPB) issued a notification establishing guidelines for AI-generated advertising that may cause material misunderstanding about products or services. The notification, which is already in effect, was issued under the Consumer Protection Act B.E. 2522 (1979) and its amendments, which prohibit advertising that is unfair to consumers or may cause harm to society, including false or exaggerated statements and statements that may cause material misunderstanding about products or services. The notification addresses emerging advertising practices, including the use of images edited using software or AI to attract consumer interest or build credibility. The OCPB noted that such advertising may result in consumers misunderstanding the essential characteristics, condition, or usage of products, which violates consumer rights and causes damage. Key Requirements on AI-Generated or Digitally Manipulated Advertising Content For advertisements using still images or videos created or edited with software programs or AI tools that may cause the depicted product or service to differ from the actual product sold or service provided—which may cause misunderstanding regarding the condition, quality, quantity, or other essential aspects of the products or services—advertisers and business operators must comply with the following requirements: Prior authorization. Obtain approval from relevant regulatory authorities where required by law. Accurate representation. Ensure that the advertised size, quantity, volume, number, or composition matches the actual product or service being sold, whether in still images or videos. Mandatory AI disclosure labels. Display clear disclosures when AI or software is used to create or edit images, such as: “Real image or simulation edited using AI” “Photo from actual location or simulation edited using AI” “Photo from actual product or edited simulation” “Image created by AI” “Video created by AI” Clarity of disclosure. Ensure disclosures are clearly visible,
Read More