BY Phillip Karugaba AND Tracy Kakongi
intellectual property (IP)
Uganda: copyright in the national anthem
The issue of who holds the copyright in national anthems is not one that comes up much, but it is one that the Ugandan Court of Appeal recently had to consider.
The Ugandan national anthem is called Oh Uganda, Land of Beauty. It goes back all the way to 1962, the year in which Uganda became independent. However, the dispute relating to the copyright in the anthem was resolved only recently in the case of Mary Theresa Kakoma, as administrator of the estate of Professor George W Kakoma v Attorney General Civil Appeal No. 50 of 2011.
The facts are interesting. In early 1962, in anticipation of independence, the Ugandan authorities asked for entries for a national anthem in an open competition. Some 50 entries were submitted, from which a shortlist of four including Oh Uganda, Land of Beauty, was put forward to a committee set up by the cabinet of the government of the then Prime Minister (and later President), Dr Milton Obote.
After several consideration, the committee opted for the Oh Uganda, Land of Beauty composition with some amendments. The anthem was first performed at the Independence Day celebrations on 9 October 1962. The composer was given UGX2 000.
Many years later, the composer sued in the High Court for an order declaring, inter alia, that he was the lawful holder of the copyright in the national anthem, and that he was entitled to 40 years’ worth of royalties. The trial court substantially disallowed the claim but held that there was dual ownership of copyright in the composition, with the composer holding a legal interest and the government holding an equitable interest by virtue of the amendments made to the composition. On this basis, the trial court awarded the composer compensation of UGX50-million for the “the residue of his interest in the copyright”. The composer was dissatisfied with the award and filed an appeal in the Court of Appeal. Judgment was given on 15 July 2019. Unfortunately, the composer has since passed on.
The appellant argued that the judge had erred in finding that the composer had been commissioned to compose the anthem because there had been no contract. It was claimed that the song was composed before the competition was announced, so the copyright must have belonged to the composer at the point of creation of the composition. It was further argued that there had been no assignment of copyright as was decided in the trial court because an assignment had to be in writing. The UGX2 000 received was a “mere honorarium”.
The State persisted with its argument that this had been a commissioned work. It relied on the present copyright legislation, the Copyright and Neighbouring Rights Act, 2006, which provides that where a person creates a work under the control of the government, the copyright belongs to the government unless otherwise agreed. It argued that, although the request to compose the anthem had not been extended to the composer alone, he had been commissioned. The UGX2 000 that had been paid was a consideration regardless of whether it was called a token or prize money. It argued that the law does not require the amount paid to be reasonable. It claimed that the order for a payment of UGX50-million was generous and should be retained.
The Court of Appeal (the “court”) focused its attention on the current legislation, the Copyright and Neighbouring Rights Act, 2006. The court pointed out that under the Act, if someone creates a work under the direction or control of the government, the government owns the copyright.
The court ruled that this piece of music had been created because the “government initiated the idea of composing a national anthem and managed the entire process... it also made amendments to the original work which had been submitted by Professor Kakoma”.
The court held, “I am inclined to find that when the song was composed in 1962 and subsequently adopted as the national anthem, the copyright thereto vested in the government of Uganda. This makes the question of commission or assignment irrelevant.”
The court further held that, as more than 50 years had expired since its first performance at the independence celebrations, “the national anthem ceased to have copyright protection in 2012” and was therefore in the public domain. As for the payment of UGX2 000, this was “a reward to the composer of the song”. The award of UGX50-million by the earlier court, on the other hand, “had no legal basis” and had to be set aside.
The decision is problematic for several reasons.
First, assuming that the ourt was correct in applying the 2006 law, it was completely silent on the moral right in the composition. Under the Act, the moral rights in a composition are always vested in the author. The holder of the moral rights has the right to claim authorship of the work, to have their name acknowledged each time the work is used and to object and seek relief in connection with any alteration or modification of the work. Additionally, the composer would have the right to withdraw the work from circulation if it no longer reflected their convictions or intellectual concepts. Moral rights are enjoyed in perpetuity and can be enforced by the successors of a deceased author.
Secondly, and most fundamentally, the court was in error in making the determination of the existence of copyright on the basis of the Copyright and Neighbouring Rights Act, 2006, which came into force on 4 August 2006. The proper law to consider should have been the common law that was applicable in 1962 when the composer created his work. It is upon creation that the copyright is brought into existence.
Although the present (2006) legislation does have a savings provision, that the Act “shall not affect any copyright or other rights that existed immediately before the repeal of the Act and all such rights shall be enforceable under this Act, as if this Act was in force at the time of the creation of that work”. This provision speaks to enforcement of copyright rather than the determination of whether copyright exists and, if so, in whom it vests.
Under common law, the author of an unpublished musical work enjoyed a proprietary right in the work that entitled them to prevent its publication by others until it had, with their consent, been communicated to the public. The author ceased to enjoy the common law copyright after publication. The composer in this case consented to the publication of his composition when he submitted it to the Government of Uganda for adoption as the national anthem. Therefore, his common law copyright ceased to exist at that point.
Hopefully, this decision will be appealed. Important matters like the national anthem of a country, which should foster unity, should not be the subject of contention.
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