Singapore IP Case Update: Official Secrets Act Overides Copyright ( Lee Wei Ling And Another V Attorney-General [2016] SGHC 207 )

In this Singaporean case, the daughter and the younger son of Lee Kuan Yew (“the LKY estate”), who are the executors of his estate applied to court for the interpretation of an interview agreement (“IA”) signed in 1983 and the right to use the recordings and transcripts of interviews (“the Transcripts”) made between 8 July 1981 and 5 July 1982. The Transcripts were kept by the current Secretary to the Cabinet (“Cabinet Secretary”). The plaintiff of this case, the LKY estate contended that all rights accorded to Lee Kuan Yew (“LKY”) under IA are vested in the LKY estate. LKY further contended that there shall be no access to, supply of copies of, or use of the Transcripts by anyone until 23 March 2020 without the express written permission of the LKY estate and the Cabinet Secretary is under a duty to inform the LKY estate of any request made for access to, supply of copies of, or use of the Transcripts and of the grant of any such request without the express written permission of the LKY estate. In rebuttal, the Attorney General opposed on the basis that the Transcripts were protected by the Official Secrets Act 2012 (“OSA”) and the LKY estate did not have the right under the IA to the use and copies of the Transcripts.

Two issues arose in this case. The court had to decide whether the OSA applied to and was relevant to the interpretation of the IA and whether the LKY estate inherited the copyright of the Transcripts. In the event the LKY estate had inherited the copyright, the next question which was based on the construction of the IA, was to what extent the copyright to the Transcripts does the LKY estate inherit?

The High Court held that the applicability of OSA to the Transcripts is a relevant issue in interpreting the IA. The OSA as a statute operates by law and needs no explicit reference in the IA. It applies to the Transcripts regardless of whether it was confidential as the Transcripts were created by LKY during his office as the Prime Minister, not in his personal enterprise. It would restrict anyone in possession or control of the Transcripts from dealing with the Transcripts without Government authorization, even LKY himself did not have an unqualified legal right to compel the Government to give him a copy of the Transcripts. The Court further held that the wording of cl 2(a) of the IA was explicit that LKY reserved the copyright of the Transcripts to himself “until 2000 or 5 years after his death, whichever is later”, and thus altered the default position under s 197 (1) of the Copyright Act 1987 (Cap 63, 2006 Rev Ed). LKY’s copyright would survive for the benefit of his estate based on s 10 (1) of the Civil Law Act (Cap 43, 1999 Rev Ed), which allows all cause of action vested in a deceased to survive for the benefit of his estate. Hence, the LKY estate inherited the copyright to the Transcripts for the 5-year period after LKY’s death. However, the copyright inherited by LKY estate is curtailed by the OSA, as such a right is limited to the purpose of ensuring the Government’s compliance with the terms of the IA only.

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