SINGAPORE - The High Court on Wednesday (Sept 28) 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 and the estate could not grant access, copies or use of them without the Government's authorisation.
They 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.
To this end, 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.
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.
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 supports the Government's claim that the transcripts dealt with politically sensitive matters and comes within the purview of the Official Secrets Act (OSA), 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 transcript, "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 then 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".
He also asked the Government to inform lawyers for Mr Lee Kuan Yew's estate if the late Mr Lee had, in his lifetime, given written permission for anyone to access the transcripts - and if so, to provide evidence to the lawyers. This was to be done within two weeks from the date of the judgment, unless the Government seeks a longer period for compliance.
In a statement last night, Rajah & Tann, solicitors for the LKY estate, said: "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 2 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."