The national anthem is worthy of respect and legal protection

The recent commercialisation of translations of the Kenyan national anthem through Safaricom’s skiza tunes provokes an important public debate.

Questions on who owns the copyright in the national anthem and its translations have cropped up. What would be the likely outcome if an application for registration of the translations would be presented to the Kenya Copyright Board (KECOBO)? KECOBO is the State corporation responsible for protecting copyright in Kenya.

Section 22(1) of the Kenya Copyright Act provides that works eligible for copyright include literary works, musical works, artistic works, audio-visual works, sound recordings and broadcasts. “Musical work” under Section 2 of the Act is defined as any musical work, irrespective of musical quality and includes works composed for musical accompaniment.

The national anthem is a musical work clearly eligible for copyright. To answer the question on who owns the copyright in the national anthem it is important to look at its history.

In 1963 as Kenya prepared to celebrate her independence from the British colonialists, the government at the time constituted a five-member anthem commission to come up with a new anthem distinct from the British anthem which was applicable to Kenya at the time.

The team settled on a tune based on a folk lullaby of the Pokomo people. The commission composed the words of the song in both English and Kiswahili. Later, the All Saints Cathedral Choir was commissioned to record the English version while the Railway Training School Choir was commissioned to record the Kiswahili version.

Under Section 25 of the Copyright Act, copyright in works of government is conferred on any work eligible for copyright which has been created pursuant to a commission from the government. Under Section 31(1) of the Act, where a work is commissioned, copyright shall be deemed to be transferred to the person who commissioned the work subject to any agreement between the parties excluding or limiting the transfer. As such copyright in the national anthem vest in the government as it commissioned works.

Having determined that copyright in the national anthem vests in the government, it would equally be important to determine whether it has fallen into public domain. Most people wrongly assume that a work is in public domain if it can easily be accessed. In the copyright sense a work is deemed to have fallen into public domain when the term of protection has ended.

Section 25(2) provides that copyright conferred on the government subsists until the end of the expiration of 50 years from the end of the year in which it was first published.

A work is deemed to have been published once copies have been distributed or made available to the public. The Kenyan national anthem was first published in 1963 under the third schedule of the National Flag, Emblems and Names Act.

It follows therefore that the term of protection of the national anthem ended on December 31, 2013, being the 50th year after the end of 1963. Thus, the national anthem can be deemed to be in public domain. As such no copyright licence is necessary for translation, adaptation or other legitimate uses.

There is no express mention in law on whether or not aspects of the national anthem may be incorporated in other new works such as translations or adaptations that may potentially enjoy copyright protection. As such an application for registration of translations or adaptation of the national anthem is likely to go through at KECOBO as a derivative work.

It should be noted, however, that it is a criminal offence under Section 2B of the National Flag, Emblems and Names Act to insult or show disrespect to the national anthem. There are no express provisions in the Act prohibiting commercialisation. Nonetheless, the prohibition of commercialisation of the words in the national anthem may be implied from the long title of the Act. It reads “An Act of Parliament to prevent the improper use of the National Flag and of certain emblems, names, words and likenesses for professional and commercial purposes, and to prohibit the display of certain flags.”

Some Western countries such as Britain and Australia have agreed etiquettes, not laws, on the use of the national anthem. Singapore’s Arms and Flag and National Anthem Rules made under the Singapore Arms and Flag and National Anthem Act expressly prohibit translation of the national anthem.

The national anthem, like other national symbols under Article 9 of the Constitution represents Kenya’s tradition, history, and beliefs and helps evoke feelings of patriotism among the citizenry.

It is a prayer that reminds us of Kenya’s glory, beauty, and rich heritage. It should therefore be given the respect, dignity and protection, it so rightly deserves. Improper use, including commercialisation, should be discouraged. Besides, it is a key symbol of the State which belongs to everybody and its use is worthy of legislative protection.

Paul Kaindo is an advocate of the High Court of Kenya, an IP expert and a Legal Counsel at the Kenya Copyright Board. [email protected]