Ng Sui Nam v Butterworth & Co (Publishers) Ltd and Others

• Jurisdiction: Singapore
• Judge: Chan Sek Keong JC
• Judgment Date: 07 April 1987
• Neutral Citation: [1987] SGCA 8
• Date: 07 April 1987
• Subject Matter: Scope of Copyright Act 1911 of United Kingdom,Binding authority of Federal Court,Binding force,Courts and Jurisdiction,Whether copyright protection conferred on all works first published in UK,Repeal of 1911 Act by Copyright Act 1956,Copyright Act 1911 [UK],Infringement,Copyright,Singapore as independent state,Singapore in Malaysia,s 73(1) Malaysia Act 1963,s 7 Constitution and Malaysia (Singapore Amendment) Act 1965 [Mal],Court judgments,Subsequent extension to Singapore,Constitution of the Republic of Singapore art 105(1),Stare decisis,Copyright Act (Cap 187, 1970 Ed)
• Docket Number: Civil Appeal No 13 of 1985
• Published date: 19 September 2003
• Defendant Counsel: Gavin Lightman QC and Anthony Lee (Allen & Gledhill)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Anthony Walton QC, Chia Quee Khee and Kan Ting Chiu (Wee Swee Teow & Co)

Cur Adv Vult

Introduction

In Consolidated Suits No 1924/81, Suit No 3913/81 and Suit No 3914/81 the respondents in this appeal claimed against the appellant, inter alia, damages for infringement of the respondents` copyright in certain original literary works. The learned judge, LP Thean J, held that the respondents were entitled to copyright protection within the Republic of Singapore in respect of such original work first published in the United Kingdom during the following periods:

(a) before 1 June 1957;

(b) 27 January 1959 to 3 June 1959;

(c) 3 June 1959 to 16 September 1963;

(d) 16 September 1963 to 9 August 1965;

(e) 9 August 1965 to the present.

For convenience, this decision is hereafter referred to as the main decision. He also held that such works first published in the United Kingdom during the period from 1 June 1957 to 26 January 1959 were not entitled to copyright protection. For convenience, this decision is hereafter referred to as the single period decision.

The appellant is dissatisfied with and has appealed against the main decision. The respondents are dissatisfied with and has sought to reverse the single period decision. The appellant`s case is that the said works are not entitled to copyright protection in Singapore in any of the six periods whereas the respondents case is that they are so entitled in all of them.

This appeal, although arising out of a copyright dispute, is said by counsel for the appellant to involve a point of constitutional law, which is, whether and to what extent the Copyright Act 1911 (the 1911 Act) requires reinterpretation, if so, what it should be, as a result of Singapore becoming an independent state on 16 September 1963. It is therefore convenient at the outset that we should provide a brief history of copyright legislation in Singapore as well as the constitutional developments leading to the independence of Singapore.

Statutory history

The statutory history is as follows:

(a) the 1911 Act was an Act of the Parliament of the United Kingdom which extended to (i) His Majesty`s dominions by its terms; (ii) self-governing dominions by their voluntary acceptance thereof; and (iii) protected territories and Cyprus by Order in Council; (iv) foreign works by Order in Council.

(b) the 1911 Act came into force in Singapore when it was part of the Straits Settlements on 1 July 1912 pursuant to a proclamation by Governor.

(c) the 1911 Act was repealed in the United Kingdom by the 1956 Act on 1 June 1956; the 1956 Act was not extended or applied to Singapore except para 41 of the Seventh Sch, which in a modified form was extended to Singapore on 26 January 1959 by the Copyright Act 1956 (Transitional Extension) Order 1959 (SI 103 of 1959) (the 1959 Extension Order).

(d) on 16 September 1963 (hereinafter called Malaysia Day), Singapore became independent as a constituent state of the Federation of Malaysia; as part of the constitutional arrangements Singapore was granted a Constitution (he Constitution of Singapore) by an Order in Council (SI No 1495 of 1963).

(e) on 9 August 1965 (hereinafter called Singapore ceased to be a state of Malaysia and became an independent and sovereign republic.

The relevant statutory and constitutional provisions are as follows:

The 1911 Act:

1(1) Subject to the provisions of this Act, copyright shall subsist throughout the parts of His Majesty`s dominions to which this Act extends for the term hereinafter mentioned in every original literary dramatic musical and artistic work, if

(a) in the case of a published work, the work was first published within such parts of His Majesty`s dominions as aforesaid; and

(b) in the case of an unpublished work, the author was at the date of the making of the work a British subject or resident within such parts of His Majesty`s dominions as aforesaid;

but in no other works, except so far as the protection conferred by this Act is extended by Order in Council thereunder relating to self-governing dominions to which this Act does not extend and to foreign countries.

...

(25) (1) This Act, except such of the provisions thereof as are expressly restricted to the United Kingdom, shall extend throughout His Majesty`s dominions: Provided that it shall not extend to a self-governing dominion, unless declared by the legislature of that dominion to be in force therein either without any modifications or additions, or with such modifications and additions relating exclusively to procedure and remedies, or necessary to adapt this Act to the circumstances of the dominion, as may be enacted by such legislature.

The 1956 Act:

31 Extension of Act to ... colonies ...

(1) Her Majesty may by Order in Council direct that any of the provisions of this Act specified in the Order (including any enactments for the time being in force amending or substituted for those provisions) shall extend, subject to such exceptions and modifications (if any) as may be specified in the Order, to

...

(c) any colony; ...

Paragraph 39 Seventh Sch:

(1) The provisions of this paragraph shall have effect for the construction of any reference in any provision of this Act:

(a) to countries to which that provision extends, or

(b) to qualified persons.

(2) Where, at any time after the commencement of any provisions of this Act, a provision which contains such a reference -

(a) has not yet been extended by virtue of s 31 to a country to which the Act of 1911 extended (or which, by virtue of that Act, was to be treated as a country to which it extended), and

(b) has not been applied in the case of that country by virtue of s 32,

then, with respect to any time before the provision is so extended or applied, the reference shall be construed as if the provision did extend to that country.

(3) For the purpose of determining whether copyright subsists in any work or other subject-matter at a time when a provision containing such a reference has been extended to a country other than the United Kingdom, the reference shall be construed, in relation to past events, as if that provision had always been in operation and had always extended to that country.

(4) ...

Paragraph 41 Seventh Sch:

In so far as the Act of 1911 or any Order in Council made thereunder forms part of the law of any country other than the United Kingdom, at a time after that Act has been wholly or partly repealed in the law of the United Kingdom, it shall, so long as it forms part of the law of that country, be construed and have effect as if that Act had not been so repealed.

Paragraph 41 as modified:

In so far as the Act of 1911 or any Order in Council made thereunder forms part of the law of any country other than the United Kingdom, at a time after that Act has been wholly or partly repealed in the law of the United Kingdom or of any other country to which that Act extended or which, by virtue of that Act, was to be treated as a country to which it extended, it shall, so long as it forms part of the law of the country first mentioned, be construed and have effect as if that Act had not been so repealed.

The Constitution of Singapore art 105(1) [now The Constitution, 1985 Edart 162]

Subject to the provisions of this Article and to any provision made on or after Malaysia Day by or under Federal law or State law, all existing laws shall continue in force on and after the coming into operation of this Constitution ... but all such laws shall, subject to the provisions of this Article, be construed as from the coming into operation of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution and the Malaysia Act.

Malaysia Act 1963 (Malaysia) s 73(1):

Subject to the following provisions of this part of this Act and to any law passed or made on or after Malaysia Day, all present laws shall, on and after Malaysia Day, have effect according to their tenor, and be construed as if this Act had not been passed: ...

Constitution and Malaysia (Singapore Amendment) Act 1965 (Malaysia)s 7:

All present laws in force in Singapore immediately before Singapore Day shall continue to have effect according to their tenor and shall be construed as if this Act had not been passed in respect of Singapore Subject however to amendment or repeal by the Legislature of Singapore.

Matters not in dispute

For the purpose of this appeal, counsel for both parties, viz Mr Walton QC for the appellants, and Mr Lightman QC for the respondents, have agreed to the following propositions, except as otherwise indicated.

(1) the repeal of the 1911 Act on 1 June 1957 in the United Kingdom did not affect its operation in Singapore as part of the law of Singapore.

(2) the 1959 Extension Order when extended to Singapore had the effect of restoring the United Kingdom as a country to which the 1911 Act extends in s 1(1) of the 1911 Act; whether it has retrospective effect to 1 June 1957 is an issue in this appeal.

(3) The 1911 Act (read with the 1959 Extension Order) was an existing law of Singapore on Malaysia Day and on Singapore Day, subject only to such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution of Singapore and the Malaysia Act 1963 and the independent status of Singapore, first as a constituent state of Malaysia and then as a sovereign republic.

(4) The 1911 Act in Singapore on Malaysia Day was not inconsistent with the Constitution of Singapore or the Malaysia Act or repugnant to the independent status of Singapore: see the decision of the Privy Council in Performing Right Society v Bray Urban District Council [1930] AC 377, the decision of the Madras High Court in Blackwood v Parasuraman AIR 1959 Mad 410...