FOR now at least, the notion of “whole ownership” of MySejahtera does not appear to be applicable as no one single party seems to own everything pertaining to the COVID-19 contact tracing app.
According to independent think tank EMIR Research, reported legal documents point to the splitting of “ownership” into three main parts:
- Ownership of the MySejahtera app: MySJ Sdn Bhd
Based on a share sale agreement on Dec 31, 2020 between MySJ’s shareholders, Entomo Malaysia is the owner of “all rights, title, and interest, including all intellectual property (IP) rights” related to the MySejahtera app (as per reported by health portal CodeBlue).
However, this may have been superseded by a share sale agreement dated Aug 27, 2021 whereby in relation to MySJ, the OEM software licence agreement between Entomo Malaysia and MySJ grants MySJ an exclusive, sub-licensable, and perpetual licence to the MySejahtera app as well as a non-exclusive, non-transferable, non-sublicensable right and perpetual licence to use the KPISoft software (as revealed by CodeBlue).
In the same share sale agreement, MySJ is described as the “owner of the platform”, likely referring to MySejahtera as one of the platforms running on or developed using KPISoft software.
“This is likely on the basis that the license is exclusive and perpetual, ie. almost as good as ‘owning’ it,” EMIR Research president/CEO Datuk Wira Dr Rais Hussin and analyst Ameen Kamal pointed out in a recent research report.
- Ownership of the data: Malaysian Government
Based on a share sale agreement on Dec 31, 2020 between MySJ’s shareholders, the “trademark and data collected through the operation of MySejahtera” have been reported as being owned by the Malaysian Government.
Also, Health Minister Khairy Jamaluddin revealed that the “ownership of all data and information obtained through the use of the MySejahtera application rests entirely with the Government”.
This could be part of the terms and conditions in a non-disclosure agreement (NDA) between the National Security Council (NSC) and KPISoft Malaysia Sdn Bhd (now known as Entomo Malaysia Sdn Bhd) dated April 1, 2020.
- Ownership of KPISoft software: Entomo Malaysia
According to the Aug 27, 2021 share sale agreement, Entomo is the “developer and legal and beneficial owner of the KPISoft software”.
Based on the same share sale agreement, MySJ “is and shall be the legal and beneficial owner of all rights, title and interest in and to such additions, enhancements, changes, modifications, including the introduction of new or changes in features to the MySejahtera application or made to the KPISoft software for the MySejahtera application, except for the rights, title, and interest in and to the KPISoft software and its trademarks shall be retained by Entomo” (as reported by CodeBlue).
Although there is now a slightly clearer picture of MySejahtera ownership, it remains unclear how this separation of ownership is operationalised outside of the legal documents, according to EMIR Research.
“For example, as far security and data integrity go, what do the rights, title, and interest in the KPISoft software and its trademarks mean when it comes to accessibility to the MySejahtera app and the data?” asked the think tank.
“Only through cross-examination of all related agreements in their entirety, especially clauses regarding ‘security’, ‘confidentiality’, ‘data ownership’ and ‘accessibility’ can we confirm finer details such as the names of parties defined to be governed under confidentiality clauses and data access and exclusivities, if any.”
Even so, EMIR Research highlighted that legal language can be written ideally, with insufficient respect for physical realities.
“The ideal separation between the app, the data, and the software the app is built on may not be as clearly separated in day-to-day operations and may lack real-world enforcement to back it up,” cautioned the think tank. – April 8, 2022
