Confidentiality provisions in contracts require clear terms, and copyright claims depend on established ownership.

Preliminary

[1] On 3 December 2014 the appellants successfully obtained leave to appeal from this court on the following questions ("leave questions"):

i. Whether the principle of law in Svenson Hair Center Sdn Bhd v. Irene Chin Zee Ling , 2008 MarsdenLR 2100 that protection of confidential information "does not have any time limits" is a correct statement of law and would therefore have been binding on the 2nd respondent even after his tenure with the appellants had ended?

ii. Whether s 132 of the Companies Act 1965 on a Director's obligation of confidentiality, and s 28 of the Contracts Act 1950 on restraint of trade are mutually exclusive such that a Director would have to maintain confidentiality and/or observe his fiduciary duties in respect of confidential information even after his tenure of office has expired?

iii. Where copyright of a collage is explicitly conceded by the commissioned agent company, is there still a need for evidence of the specific employee of the agent company to be within the provision of s 26 of the Copyright Act 1987 ?

iv. Whether the restrictive covenant clause, to wit, cl 2(d) in the deed of restrictive covenant which carried the restriction that the 2nd respondent will not, inter alia, divulge or breach the confidentiality of any confidential information gained during employment or "at any time thereafter" is prohibited or rendered void by s 28 of the Contracts Act 1950 ?

[2] For convenience, in this judgment, unless otherwise stated, the appellants are referred to as the plaintiffs and the respondents as the defendants.

[3] On 18 March 2005, the plaintiffs commenced an action against the defendants. The basic allegation against the 2nd defendant was that he had misappropriated the private and confidential information of the plaintiffs and thus he had breached the terms of his employment contract, employee confidentiality agreement and deed of restrictive covenant and/or his duties imposed by law and equity as the senior employee of the plaintiffs and/or his obligations of confidence imposed by law and equity. And as against both the defendants, the plaintiffs alleged that they had infringed the plaintiffs' copyright.

[4] A claim for passing off was also dealt with by the courts below. However, it is not part of the leave questions posed to us. As such we need not deal with it in this judgment.

[5] After a full trial, the learned High court Judge held that the 2nd defendant "by soliciting for business from Dynacast's customers and using information he had obtained by virtue of his previous employment with Dynacast was in breach of the obligations of confidentiality as provided for in the agreements he had entered with Dynacast".

[6] Further, the learned High court Judge did not accept the argument that the restrictive covenant entered by the 2nd defendant offended s 28 of the Contracts Act 1950 ("Contracts Act"). She held that the "2nd defendant is in breach of his confidential obligations when he approached Dynacast's customers in respect of ongoing projects at the time he left Dynacast and should be held accountable for it".

[7] The defendants appealed to the court of Appeal against the whole of the decision of the High court while the plaintiffs cross-appealed against the dismissal of their claims on breach of copyright and passing off. The court of Appeal allowed wholly the appeal of the defendants and dismissed the cross appeal of the plaintiffs. Hence, this appeal before us.

Background Facts

[8] The 1st plaintiff is a company incorporated in Malaysia whose address of service is at Lot No 154, Alor Gajah Industrial Estate, 78000 Alor Gajah, Melaka. The 2nd plaintiff is a company incorporated in