High Court dismisses application by Lee Kuan Yew's estate over transcript

The High Court yesterday dismissed an application by the estate of Mr Lee Kuan Yew against the Government.

The estate's executors, Dr Lee Wei Ling and Mr Lee Hsien Yang, had claimed that it was entitled to use and have copies of the oral history transcripts of the late Mr Lee done in the early 1980s, as it held the copyright after Mr Lee's death on March 23 last year.

But the court agreed with the Government that Mr Lee Kuan Yew's right to grant permission for access, copies and use was personal to him, and it was not his intention for his estate to have free use or custody of the transcripts.

In his judgment, Justice Tay Yong Kwang noted that Mr Lee Kuan Yew, in drafting an agreement on the transcripts over 30 years ago, emphasised the political sensitivity of the material and the need to safeguard their confidentiality.

He added that the transcripts were protected under the Official Secrets Act (OSA) and the estate could not grant access, copies or use of them without government authorisation.

The transcripts were part of a government oral history project in the early 1980s, and contained accounts of affairs of state as observed and experienced by then Prime Minister Lee Kuan Yew.

Due to the political sensitivity of its contents, Mr Lee Kuan Yew and the Government put in place a "two key" system - where he would retain the copyright, while the Government would have physical custody of the tape recordings and transcripts - to control its usage.

Mr Lee Kuan Yew signed an agreement with the Cabinet Secretary and the Director of Archives in 1983 with specific terms governing the transcripts' use and administration.

The agreement said the transcripts would be kept in the Cabinet Secretary's custody until 2000 or five years after Mr Lee's death, whichever is later, after which the Government may hand the transcripts to the Director of Archives.

During this moratorium period, no person should have access to, supply copies or be able to use the transcripts without Mr Lee Kuan Yew's express written permission. He himself retained all copyright in the transcripts during this period, after which copyright would vest in the Government.

In agreeing with the Government, Justice Tay said extracts of parliamentary debates during the period showed that Mr Lee Kuan Yew did not give the interviews as a private individual, but as prime minister.

"In my view, the excerpts above support the Government's position that the transcripts were not created as a personal enterprise by LKY to record his observations for his own benefit," he said.

"Instead, they were one of a series of similar recordings that were created as part of the Government's project to document the history of Singapore, then a city-state with shallow historical roots."

Correspondence between Mr Lee Kuan Yew, the then Cabinet Secretary and then Attorney-General, and the fact that the resulting agreement was signed by three parties, also support the Government's claim that the transcripts dealt with politically sensitive matters and come within the purview of the Official Secrets Act, said Justice Tay.

He dismissed the estate's argument that the transcripts did not come under the OSA as there was no reference to it in the interview agreement.

"The OSA as a statute operates by law and needs no explicit reference," he said.

As such, the estate does hold the copyright to the transcripts, "but only for the purpose of ensuring the Government's compliance with the terms" of the agreement Mr Lee had signed regarding the interviews, which were conducted between July 8, 1981 and July 5, 1982.

The terms of the agreement also meant the Government had committed a technical breach when it allowed Mr Lee Hsien Yang to view the transcripts in late May last year, said Justice Tay, as only Mr Lee Kuan Yew could have provided the written permission this required.

But he said the breach was minor, and accepted it was done because of a request by the late Mr Lee's estate.

The transcripts were at the late Mr Lee's Oxley Road home when he died, but a family member, thinking they were official documents, handed them over to Cabinet Secretary Tan Kee Yong without the knowledge or consent of the estate.

The estate became aware of them when told by the family member there was an acknowledgement of receipt from the Cabinet Secretary.

Mr Lee Hsien Yang asked to see the transcripts, and the Government agreed on condition that he did so at the Home Affairs Ministry and sign an undertaking on secrecy before viewing them.

Mr Lee agreed, but after looking through the transcripts, realised they were not marked "Secret".

He and his sister filed the court application last September, as executors of Mr Lee Kuan Yew's estate, to clarify the agreement their father made in early 1983 over the use of these interviews.

Justice Tay noted that there was no record of the circumstances under which the transcripts were transferred from the Cabinet Secretary to Mr Lee before his death.

But he said the fact that the transcripts were specified to be kept by the Cabinet Secretary "indicates that the interview agreement was not the usual copyright agreement".[[nid:184451]]

What the executors sought

As executors to Mr Lee Kuan Yew's estate, Dr Lee Wei Ling and Mr Lee Hsien Yang applied to the High Court last September to clarify an agreement their father made in early 1983.

The agreement was over the control and use of oral interviews the late Mr Lee had given to the Government's then Oral History Department in 1981 and 1982.

In their filings, they sought to have the court declare that all rights to the interview transcripts belong to the estate following Mr Lee's death, as is stated under copyright law.

They argued that the wording of the agreement meant that Mr Lee did not intend for the copyright to be limited such that it did not transfer to his estate following his death.

The executors also claimed that the agreement meant that the copyright is retained by the maker, in this case Mr Lee Kuan Yew, even if the transcripts were created as part of a government project.

The executors added that the Official Secrets Act (OSA) was irrelevant to the case, which they claimed was contractual in nature and was about competing interpretations of the agreement.

They argued that the agreement governed the copyright and use of the transcripts and did not make reference to the OSA and that, in any case, the OSA cannot modify the contract terms set out in the agreement, among other things.

Therefore, the executors asked the court to declare that the estate is entitled to use and have copies of the transcript, and that no access to or use by anyone of the transcripts can be granted without the estate's permission.

The executors also asked the court to declare that the Cabinet Secretary, as custodian of the transcripts, has a duty to inform the estate of any requests following Mr Lee's death to access or use them, and if it has granted any such requests without the permission of Mr Lee's estate.[[nid:224353]]

What the Government said

Transcripts of interviews that Mr Lee Kuan Yew gave in the early 1980s were part of an oral history project to record the observations of Singapore's first prime minister, the Government said.

The political sensitivity of the transcripts, which contain the "personal and unvarnished accounts of important events and affairs of state in Singapore's history", meant that it was Mr Lee's intention that there be a five-year moratorium following his death before they are used, it added.

To achieve this, Mr Lee and the Government put in place a "two key" system that split copyright ownership and physical possession of the transcripts via an agreement, with the Cabinet Secretary as custodian to the documents.

This, the Government said, was because Mr Lee sought to safeguard the confidentiality of the transcripts, so that they could not easily be used or exploited by either the copyright holder or the Government.

It added that the agreement is worded such that Mr Lee himself retained all copyright in the transcripts for the moratorium period, after which the copyright will pass to the Government.

The Government also countered the estate's view that the Official Secrets Act (OSA) was not relevant to the case, saying it mattered as it affects how the agreement is interpreted contractually.

Also, the OSA applies to the transcripts due to Mr Lee's position, and did not require explicit reference.

In documents it submitted to the court, including excerpts of parliamentary debate and Mr Lee's correspondence as the agreement was being drawn, the Government argued that the transcripts were part of a government project and done in his capacity as prime minister, not a personal enterprise by Mr Lee to record his memoirs for his own benefit.

The politically sensitive nature of the transcripts was also reinforced by this evidence, the Government added.[[nid:201908]]

What the court found

The High Court largely agreed with the Government's interpretation of the agreement and ruled that, while Mr Lee Kuan Yew's estate has the copyright to the interview transcripts, it is only for the purpose of ensuring that the Government complies with the terms of the agreement.

It also ruled that the Official Secrets Act (OSA) is relevant and applicable in this case.

In dismissing the estate's application, Justice Tay Yong Kwang said Mr Lee's right to grant permission to access, copy and use the transcripts was personal to him, and it was not Mr Lee's intention for his estate to have free use or custody of them.

"Based on a plain reading of the Interview Agreement, I agree with the plaintiffs' interpretation... that the LKY estate inherited the copyright to the transcripts for the five-year period after LKY's death," said Justice Tay.

"However, this copyright is a limited one," he said.

Justice Tay noted that the transcripts come within the category of protected information covered by the OSA, thus restricting anyone in possession or control of them from dealing with them without the Government's authorisation.

"The Interview Agreement cannot be interpreted based solely on contractual principles applicable to a normal copyright assignment," he said.

That the agreement stipulated the transcripts be kept in the custody of the Cabinet Secretary and was signed by three parties also lends support to the Government's claim that the documents dealt with politically sensitive matters, he added.

However, Justice Tay said it would be proper for the Government to inform lawyers for Mr Lee Kuan Yew's estate if he had given written permission to anyone to access the transcripts.

And if such permission had been given, the Government should provide evidence to the estate.

Statement from estate of LKY

Rajah & Tann, solicitors for the Lee Kuan Yew estate, yesterday issued this statement on the High Court judgment.

The estate of Lee Kuan Yew welcomes the High Court's decision that the estate has the copyright to the tape recordings and transcripts of the late Mr Lee's interviews. This resolves a key point on which the Government disagreed with the estate. The estate also awaits the Government's compliance with the court's direction to inform the estate within two weeks whether the late Mr Lee had given his express written permission to anyone for access to, supply of copies or use of the tape recordings and transcripts.

The estate is reviewing the court's ruling that the copyright vested in the estate is limited to ensuring the Government's compliance with the interview agreement, and does not include a right to use or make copies of the tape recordings and transcripts.

The estate believes that such an interpretation of the interview agreement runs contrary to the context, language and purpose of the interview agreement, and is considering an appeal against this ruling.

The estate is also considering seeking leave to appeal against the court's decision to expunge parts of affidavits and documents filed for the purpose of the hearing.

yanliang@sph.com.sg

This article was first published on September 30, 2016.
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