How obscure can the entire deal surrounding MySejahtera be that not even high-level officials from the Health Ministry (MoH) and the Ministry of Finance (MoF), have the same understanding of what is exactly happening?
Reports on the Public Accounts Commission (PAC) hearing dated 24 March 2022 mentioned that Harjeet Singh, deputy secretary-general (finance) of the MoH, told the PAC that KPISoft Sdn Bhd (KPISoft) changed its name to MYSJ Sdn Bhd (MySJ).
At the same time, we also have Rosni Mohd Yusoff, deputy secretary at the Government Procurement Division from the MoF, reportedly stating that KPISoft and MYSJ are two different entities.
Through a press statement dated March 27, 2022, the MoH asserts that the Government owns MySejahtera, while mentioning nothing about MySJ. However, later on, Health Minister Khairy Jamaluddin also reportedly pointed out that the negotiations with MySJ would not continue should MySJ disagrees that the government owns the app.
Therefore, how can MoH assert that the government has “decided” that the MySejahtera application is owned by the government, while the ownership issue could still be in dispute? How can MoH ignore MySJ’s ability to agree or disagree with this fundamental premise when it released the statement?
If we assume that MySJ has not agreed on the ownership of the app, what is the current fate of MySejahtera’s data?
As reported by CodeBlue, Entomo Malaysia is the owner of “all rights, title, and interest, including all intellectual property (IP) rights” related to the MySejahtera app, based on a share sale agreement on December 31, 2020, between MySJ’s shareholders. CodeBlue noted that this excludes “trademark and data collected through the operation of MySejahtera” that are owned by the Malaysian government.
It is unclear what the implication of the Malaysian government owning the data without “all rights, title, and interest, including all intellectual property (IP) rights” of the MySejahtera app.
Questions may arise on the accessibility, privacy, and security of the data which may not be exclusive to the Malaysian government given that another private entity owns all rights.
On this note, Khairy reportedly said the following: “The data is kept by the government. It’s just that the new company needs to make a new deal in terms of platform maintenance. But we’re also in the process of looking at what services we need for the long term.”
Again, some key questions come to mind:
- Is Malaysia’s government the “sole” owner or one of the owners?
- Is Malaysia’s government the “only” party that has access to the trademark and data collected through the operation of MySejahtera?
Khairy said that the deal to transfer the app’s IP and software license between KPISoft/Entomo and MySJ has nothing to do with the government’s latest negotiation.
This is merely stating an obvious fact that it is a deal between two private entities. It doesn’t clarify anything. If anything, it also puts more doubt that only the MoH has access to the data gathered and processed by MySejahtera, even if it owns it.
Deals between the government and MySJ legally cannot override established contracts between MySJ and Entomo. Therefore, if the government has the interest to acquire rights and fights for the ownership of the app and its data, the government is at least indirectly involved in this tripartite mess.
Thus, it is unclear how the government can simply move away from MySJ given they are the recipient of the transfer of MySejahtera’s IP and software license from Entomo.
Cabinet’s decision on the matter could be a consequence of the original CSR deal, which appears to have “trapped” the government into dealing with whoever KPISoft/Entomo transferred their IP and license to.
In other words, relying on a CSR deal with only one company in mind was a mistake. Given how unacceptable this was, it’s reasonable to question if the error was unintentional or planned.
If the government does not mind not owning all rights to MySejahtera so long as they can be the sole owners of the data, does this mean that the government is stuck with some form of agreement with private entities, through licensing or otherwise, instead of wholly owning all rights to MySejahtera perpetually?
Was the government somehow conned by the owners of KPISoft/Entomo and MySJ?
As reported by CodeBlue, the agreement “grants MySJ rights to use the KPISoft software to exclusively develop, own the applicable trademark for MySejahtera, and test and support the MySejahtera app”, while “all rights, title, and interest in and to the KPISoft software, the trademarks, and the services, among others, shall be retained by KPISoft unless expressly provided otherwise in the agreement”.
Note that having the rights to use the software and owning the application trademark may not be the same as owning the application in its entirety.
Foreign ownership in MySejahtera developers?
On the issue of ownership, CodeBlue also revealed that the Singaporean company Entomo Pte Ltd has been listed as the sole shareholder of Entomo Malaysia and that Entomo Pte Ltd’s biggest shareholder is also a Singaporean company.
As a direct consequence, “all rights, title, and interest, including all intellectual property rights” related to the MySejahtera app owned by Entomo Malaysia is indirectly owned by a Singaporean entity.
Whatever the reasons may be, the NSC and NACSA must conduct the necessary due diligence to uncover the potential risks surrounding data ownership and the clear conflict of interests given similar names appearing on the companies involved.
The proposed scope expansion is a question for public health experts to determine if it is truly value-adding or not, and to investigate if it can work in practice to really help improve the public health system in the country.
Dr Rais Hussin and Ameen Kamal are part of the research team of EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research