Law of Intellectual Property
By Ng-Loy Wee Loon
A book of this kind has been needed for sometime. Indeed, the need has become increasingly urgent as there has been a steady stream of cases emanating from our courts and a growing local jurisprudence. Intellectual property law has now become such an important subject in Singapore that it deserves a broad overview, which this well researched and readable book amply provides, as well as detailed treatment by specialist texts relating to its main constituent areas of copyright, patent and trade mark. It is therefore a pleasure to welcome the book.
The book follows the traditional topic-by-topic approach, dealing in turn, after a short introduction, with copyright, trade marks, patents and breach of confidence. However, the similarity with some more traditional text ceases at that point. Little time is spent on the historical development of each of the areas as well as their social and economic justifications. Even then, the purpose is no more than to set the scene. There is no diversion or discourse into social debate, academic opinion, predictions of legal developments and consideration of what the law should be. The reader has the comfort of knowing that he or she does not have to elicit the law from pages of academic or other debate.
On the other hand, the book is not simply a bland
statement of the law. Nor is it merely a review of the local cases or a summary
of the whole gamut of the law in Singapore. The author is to be applauded
for providing her own perspectives respecting a number of cases, supplementing
them with apt illustrations and even local patois. One notable example relates
to the case of Tay Long Kee Impex Pte Ltd v Tan Beng Huwah  2 SLR 750
where the plaintiff, a manufacturer and distributor of backpacks bearing the
trade mark 'hayrer', claimed that the defendant had copied several features
of its backpacks, including its warranty card. The 64-worded card stated as
'All hayrer products are designed and manufactured to provide maximum carefree service, hayrer products carry a lifetime guarantee to be free of defects in materials or workmanship. This does not cover wear and tear or abuse. Accordingly, hayrer will repair or replace, without cost to our customers, any product which is defective in materials or workmanship promptly after its return to our sole agent'.
One might be forgiven for taking the view that the wording warrants copyright protection for the warranty card. However, the Court of Appeal held that while the wording was a piece of literary work in a very broad sense, it could not subsist on its own as a literary work because in itself, "the warranty as a literary work is hardly consequential" and is really 'de minimis'. The author understandably discerns from this that in order to obtain copyright protection in Singapore, a literary work must cross the de minimis threshold, which means that short phrases (eg, titles of books and movies) and single invented words (eg, a trade name) would not qualify as literary works in Singapore. The court did not explain the reason for imposing such a threshold. This is where the author fills the void. She perceives the reason to be the undesirability of conferring copyright protection on what are essentially the basic building blocks in a language and the fact that in a multi-racial Singapore, new words and phrases drawn from the three main languages have created a new language (namely, Singlish) of which the well known examples include 'blanjah' and 'beh tah han'. She explains that:
'If the individuals who coined these words and phrases were granted copyright and allowed to control the use of these words and phrases, Singlish might not be as rich and colourful as it is today'.
There is a particularly interesting chapter which is entitled 'Singapore's IP Journey: From Third World to First'. It traces the evolution of Singapore's intellectual property policies from the start of nationhood in 1965 to the present day. The author detects two principal features in the journey, namely, a very utilitarian approach to intellectual property which is perceived as a tool to achieve the economic goals of the country and the constant need to modify the intellectual property system to take into account the special needs of the country. The journey began with a profound scepticism of the benefit of intellectual property law to Singapore. In introducing the Copyright (Gramophone Records and Government Broadcasting) Act in 1968, the then Minister for Law, Mr. E.W. Barker, revealed that Singapore did not subscribe to any of the intellectual property conventions because 'these conventions are for the benefit of the developed countries who refuse to share their knowledge with us'. It is intriguing that such an attitude remains prevalent in many Third World countries today.
According to the author, the change in Singapore's attitude started in the mid-1980s, corresponding to the shift in the country's focus towards the higher technology industries such as the software industry. This led to the revamp of the copyright law in 1987 which ended the long reign of the Imperial Copyright Act 1911 and which, amongst others, extended protection to entrepreneurial works such as sound and video recordings, cable television and satellite broadcasting. The final phase of the journey is marked by Singapore's accession to the TRIPS Agreement as well as its entry into a number of bilateral free trade arrangements which prescribe 'TRIPS-plus' level of protection. The author argues that this accords with Singapore's intentions to develop the creative industries and that it was not a reluctant 'victim' of the US strategy to 'ratchet up' the level of intellectual property protection worldwide through the much maligned route of bilateralism.
The author discloses in her preface that the book was born of a challenge that she had set herself: 'to write a book on intellectual property law which focuses primarily on Singapore case law'. While there is no doubt that the author has more than met the challenge, the focus on Singapore case law explains the brevity of some of the chapters. Specifically, owing to the dearth of local cases, a number of aspects of the law could only merit brief and cursory consideration. For instance, the chapter on 'Defences' relating to breach of confidence comprises only three paragraphs dealing with the well-established rule that where the confidential information involves the commission of some wrongdoing, publication of the information would not be restrained because there is a public interest involved. Also, it is to be regretted that the nature of registered design protection could only be covered in a brief summary within two pages. The brevity however does not detract from the strength of the book. Rather, it indicates that the book is a work-in-progress and will consume the author as more and more cases emanate from our courts in the years ahead. It is a fate shared by this reviewer.
It is a common complaint by students and practitioners new to a subject that they cannot see 'the wood for the trees'. They can no longer now make the complaint in relation to intellectual property law in Singapore. This book provides that clear and authoritative text that they desire. It should be bought and read by students and practitioners who wish or profess to practise that law.
Tan Tee Jim, SC
Lee & Lee