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Computer software expands into new frontiers at an exponential rate, pervading our daily lives. From the advent of the personal computer to the growth of artificial intelligence, software development opens new possibilities for economic efficiency, human flourishing, and creative expression in the digital age. With these new advancements, however, legislatures and courts face the increasingly difficult task of crafting intellectual property protection that is appropriate in scope and strength for the unique features and functions of software. They must additionally consider, on one hand, the social costs of granting exclusive author rights, and on the other, the need to incentivize innovation and ensure social well-being.
The most relevant rights for protection are those that control what actions can be performed with a particular copy of the software. Such a right to access by the third parties permits a particular user to read the software’s source code. The source code is the human-readable programming language that serves as instructions for the computer to translate into machine-readable object code and then execute. The right to use allows one to use the software for the intended purpose defined in the license agreement. Meanwhile, if the license grants users the right to duplicate or reuse, then the user can permissibly “make identical copies of the software” or “recreate features or other aspects of the software in a new program, without using any of the original program’s code. The right to modify grants permission to change aspects of the software, and the right to distribute allows the user to give away any copies of the software. Lastly, the right to reuse allows one to utilize parts of the software, or even the entire software, in a new software program.
These are the rights that are most significant to the user. The rights to exclude and alienate are rights that pertain more to software owners, as they are the ones who can limit how and by whom their software is used.
Software in Thailand
In Thailand, the principal source of law relating to copyright is the Copyright Act B.E. 2537 (1994). The Copyright Act defines software (referred to as a “computer program”) as “a set of instructions or anything which is used with a computer to make the computer work or to generate a result no matter what the computer language is.” Software is protected in the same category as literary works. Thus, the foremost protection afforded by the Copyright Act is the protection of the source code.
As a signatory to the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) since 1931 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) since 1995, Thailand honours its obligation to protect foreign copyright. The copyrighted work of a creator from a member country of both the Berne Convention and TRIPs enjoys protection under the Copyright Act.
Conditions for Software Protection
Under the Copyright Act, there are certain requirements have to be fulfilled:
- An expression of ideas;
- An expression in a recognized work;
- Originality; and
Computer programs are recognized and protected as literary works. In order for a computer program to be protected under the Copyright Act, the computer program must be the result of a creative expression of the ideas of the author, and such expression of ideas must be sufficiently original. The Copyright Act only protects expressions of ideas, not the ideas themselves. However, the required level of originality or creativity is minimal. The copyright protection is automatic upon the creation of the work of the author. Copyright registration is not required to enforce a copyright.
Rights conferred upon by the act
A copyright owner is entitled to a set of exclusive rights. Generally, the copyright owner may exclude others from:
- reproducing or adapting the work;
- communicating the work to the public;
- leasing the original or copies;
- giving benefits accruing from the copyright to other persons; and
- licensing the rights in any of the first three points above with or without conditions, provided any conditions do not unfairly restrict competition.
The Copyright Act recognizes moral rights covering the right of authorship and the right of integrity. The author of the copyrighted work is entitled to identify himself or herself as the author and to prohibit the assignee or any other person from distorting, shortening, adapting, or doing anything to the work, to the extent that such an act would cause damage to the reputation or dignity of the author. After the author’s death, the heir of the author is entitled to bring suit for the enforcement of this right through the term of copyright protection, unless otherwise agreed in writing.
The exclusive rights that are provided against the third parties to the owner of such copyright can be assigned, without any limitations. The copyright owner may assign the whole or part of his or her copyright to another person for a limited period or the entire term of the copyright.
A third party can obtain a license from the copyright owner for the right to reproduce, adapt, communicate, or rent the original or copies of a computer program. The copyright owner has the right to decide how to limit the use of the work, but limitations on users that are restrictive of fair competition are prohibited under the Copyright Act. A license may be granted as an exclusive license or a non-exclusive license. If the original author is not the copyright owner as well, he or she has no exclusive rights to the work and, therefore, cannot impose limitations on users. The moral rights remain with the author and cannot be granted by the copyright owner to a third party.
Although the Copyright Act does not explicitly cover the ownership of a derivative work, software derived or developed from an original source code owned by another person could be considered a reproduction or adaptation, which requires the permission of the copyright owner. By consent of the copyright owner, theoretically, such a derivative work would be considered as being part of the original work rather than a complete new work. In the case of a work being, by its nature, a collection or compilation of works (or source codes), the developer will need consent from the owner of the copyright works prior to creating a collection or compilation of data or source codes, whether in machine-readable form or communicated with the aid of a machine or other device.
Author: Tanya Saraswat – a student of Institute of Management Studies (NMIMS), in case of any queries please contact/write back to us via email firstname.lastname@example.org. or at Khurana & Khurana, Advocates and IP Attorney.