By Perpetua Mwangi

During this year’s World Intellectual Property (IP) Day celebrations, a question arose whether the use of a few lines from Kenya’s National Anthem to create other works would amount to copyright infringement. In this connection, many sought to find out whether the National Anthem had fallen into the public domain in 2013.

Copyright in the national anthems of some countries is in the public domain

The copyright over ‘Amhrán na bhFiann’ (Ireland’s national anthem) officially expired on 31 December 2012 in accordance with the Irish Copyright legislation. It was reported that the Government considered bringing new law to protect the national anthem. It is not clear whether this law has seen the light of day.

In 2010, it was reported that when Turkey discovered that its national anthem ‘İstiklal Marşı’ may be unprotected by copyright, legislative efforts were sparked in a bid to make the song public property. Such consideration is indeed vital following the British rock band Sex pistols’ controversial version of ‘God Save the Queen’. The title of their single is taken directly from the national anthem of the United Kingdom. It cannot be asserted with certainty that use of the words ‘God save the Queen’ obviously from UK’s national anthem was because the national anthem is out of copyright or that there is freedom to use aspects of UK’s national anthem to create new works even for commercial purposes.

Back home, an attempt to adequately address this legal conundrum necessitates a hop back in time to 1963 when Kenya was gearing towards celebrating her triumphant independence from the claws of the British colonialists. Kenya’s Government at that time tasked an anthem commission to come up with a new anthem distinct from the British anthem which was applicable at that time. The five member commission comprising of George Senoga-Zake, Peter Kibukosya, Washington Omondi, Graham Hyslop and Thomas Kalume was required to incorporate traditional Kenyan music. The team settled on a tune/melody based on a folk lullaby of the Pokomo people; an ethnic community from Kenya’s coastal region.

Bee mdondo, bee, Bee mdondo bee
Akudobee ni gani?
Huenda hukawabige watu wa makoneah
Mwenzi uyawa, ni nani?

The commission composed the words of the song in both English and Kiswahili. Later, the All Saints Cathedral Choir recorded the English version while the Railway Training School Choir recorded the Kiswahili version.
Kenya’s National Anthem is unique in the sense that it was specifically commissioned by the Government. It is a form of prayer as well as a patriotic musical composition that evokes inalienable qualities, virtues and the very foundations of our homeland. Importantly, it is a symbol of our national unity.

Copyright in Kenya’s national anthem

Copyright Act chapter 130 of the laws of Kenya provides guidance in this respect. Some key provisions:

• Section 22 makes provision regarding works eligible for copyright. They are Inter alia literary works, musical works, and sound recordings.
• Section 22(3) sets the conditions for copyright protection; literary or musical works have to be (a) original and (b) reduced to material form.
• Section 23(2) provides for duration of copyright; for literary and musical works, it is the life of the author plus 50 years whereas for sound recordings, it is 50 years after the end of the year the recording was made.
• Section 25(1) confers copyright to works eligible for copyright protection that have been commissioned by the Government.
• Section 25(2) and (3) sets the duration for Government commissioned works; copyright in literary, musical and sound recording subsist until the end of the expiration of 50 years from the end of the year they were first published (for literary and musical works) or recorded (for sound recordings).
• Section 31(2) provides for ownership of copyright in Government commissioned; copyright in such works initially vests in the Government.

From the foregoing provisions, Kenya’s national anthem satisfies the legal requirement and thus enjoys protection as;

• Literary works in the lyrics which were composed by the five commissioners;
• Musical works in the melody/tune which as already stated is based on a pokomo lullaby (this introduces a unique aspect relating to works made from folklore. Prior to use of folklore for commercial purposes, the consent of the AG has to be sought. (Section 49(d) Copyright Act). Since the work was commissioned by the State for public interest, section 49(d) does not apply);
• Sound recordings in both the English and Kiswahili sound recording versions that were made.

The Government is thus the copyright holder over the literary, musical and sound recordings of Kenya’s national anthem as such works were commissioned by the State prior to their creation. Interestingly, Kenya marked 50 years of independence in 2013. A plain reading of the Copyright Act section 25 (2) and (3) suggests that prima facie, copyright in the national anthem fell into the public domain in 2013 having subsisted for 50 years since 1963.

Does that then mean that Kenya’s national anthem being out of copyright protection is free for all and sundry to use as they please?

Kenya’s national anthem is a symbol of national unity, and hence enjoys further protection and recognition. Firstly, under Article 9 (1) (b) of the Constitution of Kenya 2010 and secondly, under section 2A (4) of the National Flag, Emblems and Names Act chapter 99 of the laws of Kenya.

As a word of caution to all and bearing in mind section 7 of the penal code Chapter 63 of the Laws of Kenya, which provides that ignorance of the law is no defence, do engrave in your mind that section 2B of chapter 99 makes it an offence to insult the national anthem and it attaches a fine not exceeding Kshs 5000 or imprisonment for a time not exceeding 6 months or both if found guilty.

The only express prohibition on use of the national anthem is in relation to an act that amounts to an insult or disrespect of the national anthem. There is no specific mention in law on whether or not aspects of the national anthem may be incorporated in other new works that may potentially enjoy copyright protection. Be that as it may, an assumption may however be drawn from the long title of Chapter 99;

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

From the wordings of the long title, improper use of the words of the national anthem for professional and commercial purposes is prohibited. Specifically, section 3 of chapter 99 prohibits the use of emblems, names and likeliness except with the written consent of the Minister. Hence it is assumed again that the lyrics of the anthem ought not to be used save with the written consent of the Minister. Take note that what is prohibited is the improper use. This leaves room for interpretation as to what amounts to ‘improper use’.

At this point, let us assume, that copyright in the literary (lyrics) works and sound recordings of Kenya’s national anthem is off bounds to persons seeking to incorporate aspects of such works into their new works for professional or commercial purposes under Chapter 99.

This leaves the melody/tune of the national anthem which as you recall was borrowed from the pokomo lullaby. Can one use such melody/tune to create new works? If no, it implies that no one not even members of the pokomo community may be allowed to use their lullaby in the creation of new works for commercial purposes; and if yes, it implies that one can use the pokomo lullaby to create new works upon receiving the AG’s consent.

Legal Notice No.9 18 March 2005 (Copyright Regulations, 2004)

Section 20
(2)Any person who wishes to use any folklore for commercial purposes shall submit his application to the Board on Form No. CR 20, accompanied with the fees set out in the Second Schedule.
(3) Any person who uses folklore for commercial purposes in Kenya without the permission of the Board commits an offence.
(4) Any person who –
(a) willfully misrepresents the source of an expression of folklore; or
(b) willfully distorts any expression of folklore in a manner prejudicial to the honour, dignity or cultural interests of the community in which it originates;
commits an offence.
(5) Any person who commits an offence under this regulation is liable on conviction, to a fine not exceeding six thousand shillings or for a term of imprisonment not exceeding six months or to both.

The feeling is that one would need valid reasons for such consent to be granted majorly because the specific pokomo folklore is expressed in Kenya’s national anthem, a symbol of national unity.

Is there a legal conflict between the Copyright Act on one part (because of the copyright duration) and the Constitution and chapter 99 on the other part (because of the recognition of symbols of national unity)? Or is it a matter of common notoriety that the national anthem is a symbol of national unity as recognized by the Constitution, period?

Many assumptions have been made in addressing the question; ‘whether aspects of the national anthem may be incorporated in other works?’ Considering that national anthems of some countries have fallen into the public domain, a plain reading of Kenya’s copyright Act validates the conclusion that Kenya’s national anthem fell into the public domain in 2013. However, recognizing the supremacy of Kenya’s Constitution, it may not be a safe conclusion to make yet.

It is thus opined that Kenya needs an express assertion that the Kenyan Government owns copyright in perpetuity over the national anthem so that there is no room for legal assumptions. And while at it, further elaborate under what circumstances, aspects of the national anthem may or may not be used not only within Kenya but outside its borders as well.