Case Summaries

Lee Wei Ling and another v Attorney-General

SUPREME COURT OF SINGAPORE

17 August 2017

MEDIA SUMMARY

Lee Wei Ling and another v Attorney-General

Civil Appeal No 149 of 2016

Decision of the Court of Appeal (delivered by Sundaresh Menon CJ)

1                    This was an appeal by the executors of the estate of Singapore’s founding Prime Minister, Mr Lee Kuan Yew (“Mr Lee”), against the decision of the High Court judge to dismiss their application for certain declarations of rights in tape recordings and transcripts of interviews conducted with Mr Lee in the 1980s (collectively “the Transcripts”). This appeal fundamentally turned on the proper construction of an interview agreement signed by Mr Lee and two Government officials which governed the rights in and the use and administration of the Transcripts.

Background to the appeal

2                    In the early 1980s, the Government embarked on an oral history project to document significant historical, political and social events in Singapore. This project involved interviews with key political appointment-holders, including Mr Lee. In 1983, Mr Lee signed an agreement setting out the terms and conditions governing the rights in and the use and administration of the Transcripts with the Cabinet Secretary and the Director of the Archives and Oral History Department, Ministry of Culture. The interview agreement was drafted by the incumbent Attorney-General at that time, Mr Tan Boon Teik (“Attorney-General Tan”). All three signatories to the interview agreement, as well as Attorney-General Tan, have passed away.   

3                    Prior to Mr Lee’s death, a copy of the Transcripts was kept at his residence as he was working on his memoirs. After Mr Lee passed away, a family member handed the copy of the Transcripts to the current Cabinet Secretary. When the executors of his estate, Ms Lee Wei Ling and Mr Lee Hsien Yang, discovered this, they requested permission to peruse the Transcripts. Mr Lee Hsien Yang was allowed to do so at the premises of the Ministry of Home Affairs, on the condition that he undertook to safeguard official information.

4                    Thereafter, solicitors for the executors wrote to the Attorney-General’s Chambers (“AGC”) (a) requesting a copy of the Transcripts; (b) seeking confirmation as to whether Mr Lee had, during his lifetime, permitted any person to access, to be given a copy, or to use the Transcripts and (c) seeking confirmation that going forward, such access would only be granted with the permission of Mr Lee’s estate. The AGC declined to provide a copy of the Transcripts to the executors on the ground that Mr Lee did not contemplate copies being made unless he had personally sanctioned this, and that in any event, the information therein was protected by the Official Secrets Act (Cap 213, 2012 Rev Ed) (“the OSA”). Further, the right to grant access to the Transcripts was a right personal to Mr Lee and did not pass on to the estate. It also declined to provide confirmation as to whether Mr Lee had provided such permissions to persons during his lifetime.

5                    On 2 September 2015, the executors filed an originating summons in the High Court seeking the following declarations:

(a)                All rights accorded to Mr Lee under the Interview Agreement are vested in Mr Lee’s estate;

(b)               Mr Lee’s estate is entitled to use and have copies of the Transcripts;

(c)                There shall be no access to, supply of copies of, or use of the Transcripts by anyone until five years after Mr Lee’s death, without the express written permission of Mr Lee’s estate; and

(d)               The Cabinet Secretary is under a duty to inform Mr Lee’s estate of any request made after the death of Mr Lee 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 Mr Lee’s estate.

6                    The High Court judge refused to grant the declarations sought by the executors, holding that the OSA applied to the Transcripts. He also held that although Mr Lee’s estate inherited the copyright to the Transcripts for five years after his death, this was for the limited purpose of ensuring that the Government abided by the interview agreement.

Judgment

7                    In the executors’ appeal against the decision of the High Court judge, the Court of Appeal dismissed the appeal and declined to grant the declarations sought by the executors.

Reasons for the judgment

The context of the interview agreement

8                    The Court of Appeal emphasised that the interview agreement must be construed with due regard to its critical context in which it was drafted. These considerations include the following. First, Mr Lee had a pre-eminent role as the founding and incumbent Prime Minister of Singapore at the time of the interviews, which meant he would have been privy to a large amount of critical and confidential information ([28]). Second, the interviews, being part of an oral history project, were not creative endeavours but an attempt to record the history of a young nation state. Restrictions on such transcripts were envisaged and in fact imposed by some interviewees, including Mr Lee ([29]). Third, while some parts of the Transcripts pertained to Mr Lee’s personal matters, most of the Transcripts canvassed materials that were at least potentially of a politically sensitive nature ([30]). The material was likely to be subject to the OSA as they contained information that Mr Lee obtained by virtue of his position as a person who held office under the Government at that time ([33]). Fourth, the correspondence between Mr Lee and Attorney-General Tan regarding the drafting of the interview agreement clearly evidenced Mr Lee’s specific concern to safeguard the confidentiality of the politically sensitive Transcripts; the interview agreement was drafted with a view to addressing that concern ([35]–[40]).     

The contents of the interview agreement

9                    Taking into account the text of the interview agreement and the specific context outlined above, the effects of the interview agreement were as follows. The ownership of the physical Transcripts vested in the Government; this was unsurprising as they were produced as part of the Government’s oral history project and undertaken using public resources ([44]). However, the Government’s ownership of the physical Transcripts was not unfettered; instead, it owed certain duties and responsibilities to Mr Lee as set out in the interview agreement, primarily to protect Mr Lee’s desire for confidentiality of the Transcripts ([45]). Significantly, Mr Lee owned the copyright in the Transcripts until the year 2000 or five years after his death, whichever was later (“the critical time”) ([47]). Consequently, the ownership of the physical Transcripts and the ownership of the copyright in the Transcripts vested in different parties. As a result, neither the Government nor Mr Lee, acting alone, would be able to have complete control over the Transcripts: if Mr Lee, as the copyright owner, wished to exercise his rights in the Transcripts (such as to reproduce, publish, communicate or adapt them), he needed to have access to the physical documents. This would require the consent of the Government. As noted below at para 12, Mr Lee did secure such a right for his own use of the materials during his lifetime. Similarly, although the Government owned the physical Transcripts, it would not be entitled to exercise any of the rights of a copyright owner (such as making a copy of the Transcripts) without Mr Lee’s consent. Otherwise, it would be in breach of copyright. This system of dual controls furthered the objective of safeguarding the confidentiality of the Transcripts ([49]).

10                The interview agreement further stipulated that until the critical time, the Transcripts were to remain in the custody of the Cabinet Secretary. This again directly addressed Mr Lee’s concerns of safeguarding the politically sensitive information in the Transcripts ([51]). Further, there was to be no access to, supply of copies of or use of the Transcripts except with Mr Lee’s prior written permission and subject to any conditions he might impose. This reserved flexibility for further and more nuanced control on Mr Lee’s part and dovetailed with the desire to protect the security and confidentiality of the information in the Transcripts ([52]). However, even if Mr Lee had given such permission to third parties, the Government was not bound to allow such access if it did not consider this appropriate in the circumstances.

11                After the critical time, the Government will own both the physical Transcripts as well as the copyright in them. It can also make the Transcripts available to persons, but such access is only allowed for the purposes of such research as the Government may approve. This means that the Government retains the right, even after the critical time, to withhold access to the Transcripts ([55]).

12                The interview agreement further provides that Mr Lee’s own right to use and access the Transcripts, including to publish them, was not affected (subject, of course, to the strictures of the OSA). This would overcome the conundrum caused by the separation of ownerships of the physical Transcripts and the copyright in them, as explained above ([57]). In the event that Mr Lee chose to publish the Transcripts, the copyright would remain vested in him even after the critical time. The Government would also, immediately upon such publication, acquire the right to make the Transcripts available for research. But as it turned out, the Transcripts were never published ([58]).


Whether Mr Lee’s rights under the interview agreement passed to his estate

13                The entire bundle of Mr Lee’s copyright passed on to his estate. This included both the positive rights (to do and to authorise others to do certain exclusive acts, such as to reproduce and publish) as well as the negative rights (to prevent others from doing those very acts) of a copyright. However, because the ownership of the physical Transcripts and the ownership of the copyright in them vested in different parties, the estate could not practically exercise any of the positive rights of its copyright without the consent of the Government, who owned the physical Transcripts. Although Mr Lee had carved out certain rights for himself in the interview agreement to ensure that he could use and access those Transcripts, the text of the interview agreement made it clear that these were personal in nature and did not pass on to the estate. In arriving at this conclusion, the Court of Appeal noted that Mr Lee did not even have a known will at the time of the interview agreement and had also not yet appointed any executors ([63]). Nonetheless, the estate would be able to exercise its negative rights to bring infringement actions against third parties for any breaches of copyright ([64]).

14                Mr Lee’s right to grant permission to persons for access to, supply of copies of and use of the Transcripts was personal to him and did not pass on to his estate. Again, this was because the language of the interview agreement clearly showed that only Mr Lee himself was authorised to grant such permissions. However, if the Government manifested an intention to allow the copying or use of the Transcripts without Mr Lee’s permission, the estate was in a position, by virtue of the negative rights under its copyright, to bring an action to restrain the Government from being in breach of copyright ([65]).

15                Mr Lee’s personal right to use the Transcripts also did not pass on to his estate. If it did, the information in the Transcripts would likely have to be communicated to the executors, but this would potentially be an offence under the OSA. It would equally be an offence for the executors to retain such information ([66]).

16                Thus, although Mr Lee had secured for himself certain rights under the interview agreement while imposing some restrictions on the Government’s ownership rights, these were personal rights of his and not transmissible even to his estate. These do not, however, affect the right of his estate to bring copyright infringement actions in the exercise of its negative rights under the copyright ([69]).

Conclusion

17                For these reasons, the Court of Appeal declined to grant any of the declarations sought by the executors. As explained above, it was not the case that all rights vested in Mr Lee under the interview agreement vested in his estate. The estate was not entitled to use and/or have copies of the Transcripts. The right to grant permission for access to, supply of copies and use of the Transcripts was a personal right of Mr Lee and his estate did not inherit this right. Without such personal permission from Mr Lee, even the Government could not allow such access until after the critical time. There was also no obligation on the part of the Cabinet Secretary to make the estate aware of any requests for copies of the Transcripts after Mr Lee’s death ([70]).

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

**********

YOU MAY ALSO BE INTERESTED IN